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Freeman 
Enforcement  of  Judgments  Against  Bankrupts 


F8773en 
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IDG    :  TS   AGAI2TST  BANKRUPTS.        1G77. 


THE  ENFORCEMENT 


-OF — 


Judgments  Against  Bankrupts. 


BY  A.  C.  FREEMAN, 

Author  op  Treatises  on  "Judgments,'"  "Executions,"  "Co- 


tenancy and  Partition. " 


ST.  LOUTS: 

THE  CENTRAL  LAW  JOURNAL 

1877. 


T 

Km 


Entered  according  to  Act  of  Congress,  in  the  year  1877,  by 

A.  C.  Freeman, 
In  the  office  of  the  Librarian  of  Congress  at  Washington. 


MAYNARD  &  THOMPSON,   LAW  PRINTERS. 
ST.   LOUIS. 


a 


V 

* 


TABLE  OF  CASES 


Alcott  v.  Avery, 
Allen  v.  Montgomery, 

Angier,  In  re, 
Epperson  v.  Stewart. 
Appleton  v.  Bowles, 
Armstrong  v.  Rickey, 
Atkinson,  In  re, 
Austin  v.  O'Reilly, 
Avery  v.  Hackley, 


B. 


[The  references  are  to  sections.] 

Bridgman,  In  re, 
Briggs  v.  Stephens, 
Brinkman,  In  re, 
Britton  v.  Payen, 
Brown  v.  Gibbons, 
Brown,  Stephen,  In  re, 
Buchanan  v.  Smith, 
Burns,  In  re, 
Burns,  S.  M.,  In  re, 
Bush  v.  Lester, 


14 
11 

8 
13 
11 

S 
12 

8 

8 


Baker,  In  re, 

3 

Barber  v.  Terrell, 

13 

Barron  v.  Benedict, 

13 

Barron  v.  Morris, 

8 

Barrow,  In  re, 

9,12 

Batchclder  v.  Putnam, 

4 

Bates  v.  Tappan, 

4,11 

Baum  v.  Stern. 

11 

Beattie  v.  Gardner, 

3 

Beers  v.  Place, 

8 

Belden,  In  re, 

4 

Bellamy  v.  Woodson, 

4 

Bernstein,  In  re, 

S 

Bigelow,  In  re, 

9,11 

Black  v.  McClelland, 

5 

Bloss,  In  re, 

10 

Blum  v.  Ellis, 

11 

Boone  v.  Rcvis, 

11,13 

Borst,  In  re, 

6 

Bowman  v.  Harding, 

4 

Boyd  v.  Vanderkenip, 

2 

Bracken  v.  .Johnson, 

4 

Bradford  v.  Rice, 

I.  :..  7 

Bradley  v.  Frost, 

11 

Brand,  In  re, 

10 

tf 

Campbell.  In  re, 
Campbell,  Hugh,  In  re, 
Catlin  v.  Hoffman, 
Chambers  v.  Neal, 
Clark  &  Binninger,  In  r< . 
Clark  v.  Binninger, 
Clark  v.  Iselin, 
Clark  v.  Rowling, 
Clarke,  In  re, 
Cogburn  v.  Spcnce, 
Cole  v.  Duncan, 
Comstock,  In  re, 
Comstock  v.  Grout, 
Cook,  In  re. 
Cook  v.  Farrington, 
Cornell  v.  Dakin, 
Cotton,  J.  S.,  In  re, 
Cozart,  In  re, 
Crawford,  In  re, 
Creditors  v.  <  'ozzens, 
Cross  v.  Hobson, 
Cniuinings  v.  ( 'legg. 
Cutter  v.  Dingee, 
I  'utter  v.  Evans, 


ii 

10 

11,  12 
3 
4 
5 
3 
2 
12 

11,13 


2 
12 

8 

11 

11 

11 

3 

5 

11 

II 

11 

7 

7 

S 

10 

14 

7 

8 

5 

12 

."> 

in.  11 

ii 

5 


IV 


TABLE    OF    CASES. 


I>. 


Daggett  v.  Cook. 

4. 

11 

Davis,  In  re, 

-t- 

12 

Davis  v.  Anderson, 

11 

Davis  v.  E.  E.  Co., 

11 

Devoe.  In  re, 

6 

Dibblee.  1, 

2 

Dick  v.  Powell. 

7 

Dingee  v.  Becker. 

4.  6, 

11 

Doe  v.  Childre--. 

4. 

11 

Douglas  v.  St.  L.  Z.  Co.. 

10 

Downer  v.  Eowell. 

5 

Dresser  v.  Brook-. 

7 

Dunbar  v.  Baker, 

4 

Dunn.  In  re, 

2 

Dusenbury  v.  Hoyt, 

13 

E. 

Eastburn  v.  YartUy. 
Edge  v.  Parker. 
Elliott  v.  Booth. 
Elli-  v.  Ham. 
Ey-ter  v.  Gall'. 


F. 


12 

11 

13 

5,  7 

4.11 


Fehley  v.  Fair. 

11 

Field  v.  Baker. 

3 

Flanagan  v.  Pearson, 

2,4,7 

Fletcher  v.  Morey, 

8 

Foster  v.  Ames. 

9 

Francis  v.  Ogden, 

14 

Frizelle.  In  re, 

11 

«.. 


Galli -on.  In  '■  .  5 

Glaser,  In  re.  6 
Goddard  v.  Weaver.                 11.  12 

Gold  M.  M.  Co.,  I,-  re,  2 

Golson  v.  Xeihoff,  3 

Granger  &  Sabin,  In  ft  ■  10 

Grinnell,  In  re,  9 


II. 


Hanibright.  /;'  re,  8 

Hanna,  In  re,  12 
Harrington  v.  IvIeXaughton.      5,  7 

Hatch  v.  Seely,  10 

Hatcher  v.  Jones.  8 

Haughey  v.  Albin.  8 

Haughton  v.  Eu^ti>,  8 

Haworth  v.  Travis,  8 

Haxtun  v.  Corse.  10 

Hazleton  v.  Valentine,  6 

Heard  v.  Jones,  10 

Heller.  In  re.  3 

Henkehnan  v.  Smith.  3 

Hennocksburgh.  In  re,  5 

Herpich.  In  re,  3 

Hester.  In  re,  S 

Hewett  v.  Norton,  4 

Hill  v.  Fleming,  11 

Hoadley  v.  Cawood,  10 

Holbrook  v.  Fos-.  5 

Hollister  v.  Abbott,  7 

Hood  v.  Karper,  3 

Hoover  v.  Greenbaum.  3 

Horner  v.  Spelman,  7 

Horter  v.  Harlan,  6,  8 

House  v.  Swanson,  8 

Huber  v.  Klauberg,  4 

Hufnagel.  In  re,  11 

Hughes,  In  re,  8 

Hyde  v.  Bancroft,  12 


Iron  M.  Co.,  12 

Ironsides.  The.  In  re,  8 

Irving.  In  re,  4.  12 

Irving  v.  Hughes,  12 


J. 


Jaycox  i^  Green,  //<  ft  .  10 

Johnson  v.  Bishop,  4 

Johnson  v.  Collins,  4 

Johnson  v.  Fitzhugh,  7 


TABLE    OF    CASES. 


Johnson  v.  Poag, 

.Font-  v.  Leach, 
Jones  v.  Lellvett. 


K. 

Keller,  In  re, 
Kellogg  v.  Russell, 
Kellogg  v.  Schuyler, 

Kent  v.  Downing, 
Kerosene  Oil  Co., 
Kerr.  In  re, 
Kimball.  In  re, 
King  v.  Bowman. 
Kintzing,  Zn  /•< . 


Lady  Bryan  M.  Co. 
Lee  v.  Phillip-. 
Leighton  v.  Harwood, 
Leighton  v.  Kelsey, 
Lenihan  v.  Haraan. 
Levy.  In  re, 
Linn  v.  Hamilton. 
Little  v.  Alexander, 
Livingston  v.  Livingston, 
Loueheim  v.  Henszey, 


M. 

Macy  v.  Jordan, , 
Mallory.  In  re. 
Manning  v.  Keyes, 
Mansfield,  In  re. 
Manwarring  v.  Kouns, 
Maris  v.  Duron, 
Markson  v.  Heaney, 
Marsh  v.  Armstrong, 
Marshall  v.  Knox, 
Marshon  v.  Haney. 
Mason  v.  Warthens, 
May  v.  Courtnay, 
May-  v.  Fritton, 
McCance  v.  Taylor. 


11 

McClellan,  in  re. 

9 

12 

McDonald  v.  Lngraham, 

7 

10.  11 

McGie,i 

3 

McGilton,  //'  re, 

5, 

Mcintosh,  In  re, 

a 

McKay  v.  Funk. 

4 

McKinsey  v.  Harding. 

2 

3 

Mebane.  In  re. 

8 

3 

Meeks  v.  Whatley, 

8,  9 

.">.  7 

Metzler,  In  re. 

12 

4 

Mitllin.  In  re, 

6 

12 

Migel.  // 

6 

8 

Minor  v.  Van  Nostrand, 

6 

6 

Mollison  v.  Eaton. 

11 

10 

Monroe  v.  Upton. 

5,  14 

12 

Moshy  v.  Steele. 

13 

Moses,  In  re, 

12 

Munsonv.  B.  H.  cV  E.  K.  K. 

CO.,   4 

Murphy  v.  Smith. 

14 

Myerv.  C.  L.  ct  P.  W., 

11 

12 

14 

11 

X. 

4 

4 

Nassau  v.  Parker, 

7 

7 

National  Iron  Co..  hire, 

9 

7.  14 

New  H.  S.  B.  v.  Webster, 

5 

3 

N.  Y.  M.  S.  Co..  In  re. 

- 

2 

12 

7 

5 

5.  14 

11 

12 

11 

11 

11 

4 

4 

3 

11 


Xoe  v.  Gibson. 
Norton  v.  Boyd, 


O. 


O'Brien  v.  Weld, 
O'Mara,  In  rt . 

O'Neill,  Ex  parte. 


Palmer  v.  Merrill. 
Palmer  v.  Preston, 
Park  v.  Casey, 
Parker  v.  Muggridge, 
Parks  v.  Sheldon. 
Partridge  v.  Dearborn, 
Patterson.  In  re, 


11 
11 


11 
6 


4 

7 

5,  14 

11 

6,7 


VI 


TABLE    OF    CASES. 


Payne  v.  Able,  11 

Payne  v.  Drewe,  11 

Peck  v.  Jenness,  11 

Pennington  v.  Sale,  12 

Perdue,  In  re,  8 

Pettis,  In  re,  6 

Phelps  v.  Sellick,  11 

Phillips  v.  Bowdoin,  8,  10 

Pierce  v.  Wilcox,  11 

Pike  v.  McDonald,  5 

Piper  v.  Baldy,  3 


B. 


Ray  v.  Brigham,  9 

Reed  v.  Bullington,  11 

Rees  v.  Butler,  7 

Reeser  v.  Johnson,  11 

Ripley  v.  Sears,  3 

Robinson,  In  re,  6,  7 

Robinson  v.  Pesant,  13 

Robinson  v.  Wilson,  11, 13 

Roden  v.  Jaco,  7,  14 

Rogers  v.  Ins.  Co.,  7 

Rosey,  In  re,  2,  5 

Rowe  v.  Page,  4 

Ruckman  v.  Cowell,  14 

Rudge  v.  Rundle,  14 

Ruehle,  In  re,  11 

Russell  v.  Cheatham,  11 


S. 


Sacchi,  In  re,  4 
Sampson  v.  Burton,                   4, 11 

Sampson  v.  Clark,  5 

Savage  v.  Best,    .  11 

Savings  Rank  v.  Webster,  14 

Savory  v.  Stocking,  13 
Second  Nat.  Bank  v.  N.  S.  B. 

of  Newark,  11 

Sedgwick  v.  Menck,  11 

Seibel  v.  Simeon,  10 

Seymour,  In  re,  7 

Sharman  v.  Howell,  11 

Sheehan,  In  re,  2 


Shuey,W.  H.,  In  re, 
Shuman  v.  Strauss, 
Sidle,  In  re, 
Simpson,  In  re, 
Sleek  v,  Turner, 
Smith  &  Smith,  In  re, 
Snedaker,  In  re, 
Spalding  v.  State, 
Sparhawk  v.  Broome, 
Stansell,  In  re, 
Stemmons  v.  Burford, 
Stephens,  In  re, 
Steward  v.  Green, 
Stewart  v.  Isidor, 
Stewart,  T.  R.,  In  re, 
Stinemets  v.  Ainslie, 
Stoddard  v.  Locke, 
Stoll  v.  Wilson, 
Stone  v.  National  Bank, 
Stuart  v.  Hines, 
Sutherland,  In  re, 
Sutherland  v.  L.  S.  C.  Co., 
Swope  v.  Arnold, 


T. 

Talbert  v.  Melton, 
Taylor  v.  Bonnett, 
Taylor  v.  Carryl, 
Tenth  Nat.  B.  v.  Sanger, 
Terry,  In  re, 
Thomas  v.  Shaw, 
Thompson  v.  Moses, 
Tills  &  May,  In  re, 
Tooker,  In  re, 
Townsend  v.  Leonard, 
Trimble  v.  Williamson, 
Truitt  v.  Truitt, 
Turner  v.  Gatewood, 
Turner  v.  The  Skylark, 


U. 

Urau  v.  Houdlette, 
Usher  v.  Pease 


11,12 

7 
2 
6 
3 
6,  8,  11 

12 
2 

13 

10 

11 
5 
4 

10 
9 

13 
4,11 

14 
4,11 

11 
2 
9 


11 
11 
11 
12 
3 

14 

11 

8 

4 

11 

13 

11,  13 

13 

11 


TABLE    OF    CASES. 


VI 1 


V. 

Valk,  In  re,  G 

Valkenburgh  v.  Dederick,  5 

Valliant  v.  Childress,  -4,  11 


W. 

Walker,  In  re,  6 

Wallace,  In  re,  12 

Warner  v.  Cronkhite,  7 
Warren  v.  D.  L.  &  W.  R.  W.  Co.,  3 

Wan-en  v.  Tenth  N.  B.,  3 

Weamer,  In  re,  1 1 

Webb  v.  Sachs,  3 

Webster  v.  Woolbridge,  S 

Weeks,  In  re,  8 

Westenberger  v.  Wheaton,  14 

Whipple,  In  re,  11 

Whitehouse,  In  re,  7 


Whitaker  v.  Chapman,  7 

Whitman  v.  Butler,  12 

Wicks  v.  Perkins,  11 

Wiggers,  In  re,  6,  7 

Wilbur,  In  re,  12 

Wilcox  v.  Pollard,  8 

Wiley,  W.  II.,  In  re,  8 

Williams,  In  re,  5 
Williams  &.  McPheeters,  In  re,      G 

Wilson  v.  Brinkman,  3 

Wilson  v.  Childs,  8,  11 

Wilson  v.  City  Bank,  3 
Winship  v.  Phillips,             8,  10,  11 

Witt  v.  Hereth,  S 

Woodbury  v.  Perkins.  5 

Wright,  J.  S.,  In  re,  7 

Wynne,  In  re,  8,  11 


Zahm  v.  Fry, 


THK    ENFORCEMENT 


-OF— 


JUDGMENTS  AGAINST   BANKRUPTS. 


Section  1.  Bankrupts,  like  other  persons,  arc  subject  to  the  jurisdic- 
tion of  the  various  courts. 

Sec.    2.  Classification  of  Judgments  against  Bankrupts. 

Sec.  3.  Judgments  entered  within  four  months  prior  to  Bankruptcy, 
when  may  be  avoided  as  unlawful  preferences. 

Sec.  4.  Validity  of  Judgments  entered  after  the  Petition  in  Bank- 
ruptcy. 

See.  5.  Enforcing  Judgments  entered  subsequent  to  the  Petition  in 
Bankruptcy. 

Sec.    6.  Proceedings  by  Execution  pending  Proceedings  in  Bankruptcy. 

Sec.    7.  Judgments  not  Released  by  Proceedings  in  Bankruptcy. 

Sec.  8.  Judgment  and  Execution  Liens  not  Extinguished  by  Bank- 
ruptcy. 

Sec.    9.  Enforcing  Judgment  and  other  Liens  in  Court  of  Bankruptcy. 

SEC  10.  Cases  where  the  Creditor  may  proceed  in  the  State  Court  after 
presenting  his  Judgment  as  a  claim  against  the  Bankrupt. 

Sec.  11.  Enforcing  Judgments  never  presented  to  the  Court  of  Bank- 
ruptcy. 

Sec.  12.  Enforcing  Proceedings  in  the  State  Courts. 

Sec.  13.  Effect  of  a  Discharge  in  Bankruptcy. 

Sec.  14.  The  Method  of  making  a  Discharge  Available. 

Section  1.  Bankrupts  are,  like  other  Persons,  subject  to 
the  Jurisdiction  of  the  Court*. — The  term  bankrupt  will,  in 
this  article,  be  employed  to  denote  a  person  who  has,  either 
upon  his  own  petition  or  thai  of  one  or  more  of  his  credi- 
tors, been  "adjudged  a  bankrupt"  in  proceedings  authorized 
by  the  present  statutes  of  the  United  States.  Before  pro- 
ceeding to  consider   the  effect  of  any  particular  class   of 


2        ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

judgments,  or  the  means  by  which  the  holders  thereof  may 
make  such  judgments  productive,  we  shall  first  inquire 
whether  there  are  any  judgments  which  may  be  regarded  as 
having  no  validity  against  the  bankrupt.  Tne  answer  to 
this  question  must  be,  that  a  bankrupt,  like  most  other  per- 
sons, is  subject  to  the  jurisdiction  of  the  different  courts, 
state  and  national .  When  summoned  to  appear  before  one 
of  these  courts,  he  must  not  treat  its  process  with  contempt, 
nor  assume  that  it  will  take  judicial  knowledge  of  those  cir- 
cumstances, which,  if  properly  pleaded,  would  cause  the 
court  either  to  suspend  its  proceeding,  or  to  grant  judg- 
ment in  his  favor.  In  other  words,  whether  an  action  be 
pending  against  a  bankrupt  prior  to  the  commencement  of 
the  proceedings  in  bankruptcy,  or  commenced  during  the 
pendency  of  those  proceedings,  or  subsequent  to  his  final 
discharge,  he  must,  in  either  case,  exercise  a  proper  degree 
of  vigilance  in  preventing  the  entry  of  a  judgment  in  con- 
flict with  his  rights  ;  for,  if  such  judgment  be  entered,  he 
will  not  be  permitted  to  treat  it  as  void. 

Sec.  2.  Classification  of  Judgments  against  Bankrupts. — 
Judgments  capable  of  enforcement  against  a  bankrupt  and 
his  estate  will,  for  the  sake  of  convenience,  be  classified  as 
follows:  first,  judgments  entered  so  long  anterior  to  the 
institution  of  the  proceedings  in  bankruptcy,  that  they  can 
not  be  assailed  on  the  ground  that  they  were  given  with  a 
view  of  permitting  the  plaintiff  to  obtain  a  preference  over 
the  other  creditors  of  the  bankrupt ;  second,  judgments 
entered  before  the  institution  of  the  proceedings,  but  at  so 
recent  a  date  as  to  be  liable  to  assault  and  overthrow  if  in- 
fected by  such  a  preference  ;  third,  judgments  entered  after 
the  commencement  of  the  bankruptcy  proceedings  ;  and, 
fourth,  judgments  which,  whensoever  entered,  are  of  such  a 
character  that  the  proceedings  in  bankruptcy  do  uot  afford 
the  bankrupt  any  immunity  therefrom.  The  judgments  of 
the  first  class  do  not  require  any  special  consideration. 
Their  validity  must  be  conceded  in  the  courts  of  bank- 
ruptcy.    They  can  not,  in  those  courts,  be  impeached  for 


ENFORCEMENT  OF  JUDGMENTS  AGAINST  BANKRUPTS.    3 

error  or  irregularity,  nor  otherwise  subjected  to  any  collat- 
eral attack.1 

If  they  are  presented  as  claims  against  the  estate  of  the 
bankrupt,  they,  with  all  costs  and  interest  accrued  before 
the  bankruptcy,  are  entitled  to  allowance.2  Whether  a 
judgment  of  this  class  constitutes  a  claim  against  the  estate 
of  the  bankrupt  must  be  determined  by  deciding  whether  it 
is  a  "  debt,"  demand  or  liability  within  the  meaning  of  Sec. 
50G 7  of  the  Kevised  Statutes.  Generally  a  judgment 
merges  or  extinguishes  the  cause  of  action  out  of  which  it 
arose,  and  is,  therefore,  entitled  to  the  same  consideration 
when  founded  upon  a  tort,  as  when  founded  on  a  contract. 
It  is  a  "  debt  "  irrespective  of  its  origin.  There  is  there- 
fore no  doubt  that  a  judgment  may  be  a  provable  debt,  al- 
though the  cause  of  action  on  which  it  was  based  could  not 
have  been  proved  as  a  claim  against  the  bankrupt.3  As  a 
general  rule,  all  judgments  of  the  class  of  which  we  are 
now  writing  are  provable  debts  within  the  meaning  of  the 
Bankrupt  Act.4  Judgments  for  fines  imposed  for  the  com- 
mission of  crimes,  or  for  contempts  of  court,  are  not 
within  the  general  rule,  and  are  not  provable  debts.5  Pen- 
alties given  by  statutes  are  treated  as  debts.  A  judgment 
for  such  a  penalty  is  therefore  provable.6  The  pendency  of 
an  appeal  does  not  destroy  the  provable  character  of  a 
judgment.7 

Sec.  3.  Judgments  Entered  within  Four  Months  prior  to 
the  Bankruptcy. — Judgments  of  the  second  class,  when  at- 

1  McKinsey  v.  Harding,  4  B.  R.  39;  In  re  J.  H.  Dunn,  11  B.  R.  270;  In 
re  Dibblee,  2  B.  R.  G17;  3  Ben.  283;  Flanagan  v.  Pearson.  14  B.  R.  37; 
In  re  Campbell,  1  B.  R.  165;  1  Abb.  C.  C.  185;  1  L.  T.  B.  30;  In  re 
Burns,  1  B.  R.  174;  7  A.  L.  Reg.  (N.  S.)  105;  24  Leg.  Int.  357. 

2  Ex  parte  O'Neill,  1  Lowell,  163;  1  B.  R.  677. 
3 3  Parsons  on  Contracts,  6tb  ed.,  466. 

*Inre  J.  W.  Sidle,  2  B.  R.  220;  Boyd  v.  Vanderkemp,  1  Barb.  Ch.  27:?. 

s/n  re  Sutherland,  3  B.  R.  314;  1  Deady,  416;  Spalding  v.  State,  4  How. 
(IT.  S.)  21;  s.  C,  10  Paige  Ch.,  2S4;  7  Hill,  301;  Macv  v.  Jordan,  2  Den. 
570. 

6 In  re  Rosey,  8  B.  R.  509. 

"In  re  Sheehan,  8  B.  R.  345;  In  re  Gold.  M.  M.  Co.  3 Saw.  C.  C.  601. 


4         ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

tempted  to  be   asserted   as  the  basis  of  a  lien    against  the 
estate  of  the  bankrupt,  are  likely  to  be   attacked  on  the 
ground  that,  for  the  purpose   of  creating  such  liens,  they 
are  void  by  the  provisions  of  sections  5021  and  5128  of  the 
Revised  Statutes.8   Section  5128  provides  that  "  if  any  per- 
son,   being  insolvent,   or  in    contemplation  of  insolvency, 
within  four  months  before  the  filing  of  the  petition  by  or 
against  him,  with  a  view  to  give  preference  to  any  creditor 
or  person  having  a  claim  against  him,  procures  or   sutlers 
any  part  of  his  property  to  be  attached,  sequestered,  or 
seized  on  execution,  or  makes  any  payment,  pledge,  assign- 
ment, transfer,  or  conveyance,  of  any  part  of  his  property, 
either  directly  or  indirectly,  absolutely  or  conditionally,  the 
person  receiving  such  payment,  pledge,  assignment,  trans- 
fer, or  conveyance,  or  to  be  benefited  thereby,  or  by  such 
attachment,  having  reasonable  cause  to  believe  such  person 
is  insolvent,  and  knowing  that  such  attachment,  sequestra- 
tion, seizure,  payment,  pledge,  assignment,  or  conveyance, 
is  made  in  fraud  of  the  provisions  of  this  title,  the  same 
shall  be  void,  and  the  assignee  ma}-  recover  the  property,  or 
the  value  of  it,  from  the  person  so  receiving  it,  or  so  to  be 
benefited."     By  section  5130  a,  "  in  cases  of  involuntary  or 
compulsory  bankruptcy,   the  period  of  four  months,  men- 
tioned in   section  5128,  is  changed  to  two   months."     The 
judgments  most  frequently  subjected  to  the  scrutiny  author- 
ized by  these  sections  are  those  rendered  by  confession,  or 
upon  default.     When  a  confession  of  judgment,  or  a  war- 
rant, or  other  power  to  confess  a  judgment,  is  given  more  , 
than  four  months  prior  to  the  filing  of  the  bankrupt's  peti- 
tion, and   a  judgment  is   in  fact  entered  by  virtue  thereof 
within  the  four  months,  the  question  then  arises  whether 
the  validity  of  the  judgment  depends  on  the  date  of  its 
entry,  or  the  date  of  the  warrant  or  power.     The  answer 
to  this   question  was  given  by  the  Supreme  Court  of  the 
United  States  :  "  In  a  case  where  a  creditor,  holding  a  con- 
fession   of  judgment   perfectly   valid  when  it    was   given, 
s  These  are  sections  35  and  39  of  the  original  Bankrupt  Act. 


ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS.        0 

causes  the  judgment  to  be  entered  of  record,  how  can  it 
be  said  the  debtor  procures  the  entry  at  the  time  it  is 
made?  It  is  true  the  judgment  is  entered  in  virtue  of  his 
authority,  an  authority  given  when  the  confession  was 
signed.  That  may  have  been  years  before ;  or,  if  not, 
it  may  have  been  when  the  debtor  was  perfectly  solvent. 
But  no  consent  is  given  when  the  entry  is  made  where  the 
confession  becomes  an  actual  judgment,  and  when  the  pref- 
erence, if  it  be  a  preference,  is  obtained.  The  debtor  has 
nothing  to  do  with  the  entry.  As  to  that,  he  is  entirely  pas- 
sive. Ordinarily,  he  knows  nothing  of  it,  and  he  could  not 
prevent  it  if  he  would.  It  is  impossible,  therefore,  to  main- 
tain that  such  a  judgment  is  obtained  when  his  confession  is 
placed  on  record."9  It  follows,  therefore,  that  if  the  author- 
ity to  confess  the  judgment  was  given  more  than  four  months 
before  the  filing  of  the  petition,  the  judgment  can  not  be 
avoided,  merely  because  it  was  entered  within  that  time.10 
The  opinion  of  the  Supreme  Court  of  the  United  States,  in 
the  case  of  Clark  v.  Iselin,  just  cited,  is  undoubtedly  in  an- 
tagonism to  the  views  of  many  of  the  subordinate  judges  ; 
and  some  of  them  are  very  loath  to  be  governed  by  it.  The 
case  of  August  Herpich  is  a  good  illustration  of  what  we 
have  just  stated.  Herpich,  being  insolvent,  executed  cer- 
tain warrants  of  attorney  in  February,  1876,  in  considera- 
tion of  prior  indebtedness.  A  little  more  than  two  months 
later,  judgments  were  entered  on  the  warrants.  Some  ten 
days  later,  Herpich  became  an  involuntary  bankrupt.  Con- 
ceding that  the  giving  of  the  warrants  was  a  fraudulent 
preference,  the  time  within  which  they  could  be  avoided 
had  expired.  The  judge  nevertheless  refused  to  follow 
Clark  v.  Iselin,  and  held  that  the  judgment  based  on  the 

9 Clark  v.  Iselin.  21  Wall.  360;  7  Ch.  L.  X.  18-"):  2  ('cut.  L.  J.  210;  11 
B.  R.  337;  reversing,  10  Blatch.  204. 

io Clark  v.  Iselin.  cited  above;  Piper  v.  Baldy,  10  B.  R.  517:  31  Leg. 
Int.  310;  Field  v.  Baker,  11  B.  R.  415;  Sleek  v.  Turner.  10  B.  R.  580; 
1  A.  L.  T.  485;  31  Leg.  Int.  308;  Contra,  Zahm  v.  Fry,  9  B.  R.  546;  31 
Leg.  Int.  107;  Hood  v.  Karper,  5  B.  R.  358;  28  Leg.  Int.  340;  Golson  v. 
Neihoff,  5  B.  R.  56;  2  Biss.  434;  In  re  Terry,  2  Biss.  350. 


G         ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

warrants  should  not  be  allowed  as  a  valid  lien  against  the 
estate  of  the  bankrupt.11  A  confession  of  judgment,  or  a 
warrant  to  confess  judgment,  given  to  secure  a  loan 
then  made,12  or  given  by  an  insolvent  to  secure  a  pre- 
existing debt,  to  a  person  who  did  not  have  reasonable 
cause  to  believe  the  debtor  insolvent,  is  not  an  unlawful 
preference,  and  a  judgment  thereon  is  not  void  under  the 
provisions  of  sections  5021  or  5128  of  the  Revised  Stat- 
utes.13 To  avoid  any  seizure  or  judgment  by  the  aid  of 
these  sections,  it  is  evident  that  these  five  circumstances 
must  be  established  :  1st,  that  the  debtor  was  insolvent,  or 
contemplating  insolvency  ;  2d,  that  while  so,  he  procured  or 
suffered  the  seizure  or  judgment ;  3d,  that  the  procuring  or 
suffering  was  within  the  time  specified  by  the  Act ;  4th,  that 
it  was  with  the  view  of  giving  a  preference  ;  and,  5th,  that 
the  person  benefited  had  reasonable  cause  to  believe  the 
debtor  insolvent,  and  that  the  latter  was  acting  in  fraud  of 
the  Act.14  When  a  creditor,  knowing  his  debtor  to  be  insolv- 
ent, pursues  the  latter  by  the  ordinary  remedy  for  the  col- 
lection of  his  debt,  and  the  latter,  also  knowing  his  own  insolv- 
ency, makes  no  defense,  and  permits  judgment  to  be  entered 
against  himself  by  default,  within  four  months  before  the 
commencement  of  proceedings  in  bankruptcy,  all  these  five 
circumstances  seem  almost  necessarily  to  co-exist.  The  only 
ones  which  can  be  absent  in  such  a  case  are,  the  view  on  the 
part  of  the  debtor  of  giving  a  preference,  and  the  creditor's 
knowledge  that  the  debtor  is  suffering  judgment  to  be  en- 
tered in  fraud  of  the  provisions  of  the  Act.  But,  as  the 
debtor  is  presumed  to  intend  the  necessary  consequence  of 
his  own  act,  and  as,  in  such  a  case,  his  inaction  so  uniformly 
leads  to  the  obtaining  of  a  preference  in  favor  of  the  cred- 

n  In  re  Herpich,  9  Ch/L.  jST.  253. 

12  Clark  v.  Iselin,  cited  above. 

13  Mays  v.  Fritton,  20  Wall.  414;  11  B.  E.  229. 

14  Clark  v.  Iselin,  7  Ch.  L.  1ST.  185;  2  Cent.  L.  J.  210;  11  B.  R.  337; 
Hoover  v.  Greenbaum,  61  N.  Y.  305;  Webb  v.  Sachs,  9  Ch.  L.  N".  156; 
15  B.  R.  168. 


ENFORCEMENT    OF   JUDGMENTS   AGAINST    BANKRUPTS.         7 

itor,  and  thereby  accomplishes  the  result  which  the  Bank- 
rupt Act  was  intended  to  avoid,  it  was,  for  a  considerable 
time,  almost  conceded  that  a  judgment  so  permitted  was 
necessarily  "  suffered  "  "  with  a  view  to  give  a  preference," 
and  that  the  creditor  knew  it  was  so  suffered  ;  and  that  he 
could,  therefore,  derive  no  benefit  from  it  out  of  the  bank- 
rupt's estate.15  Different  views  finally  prevailed  in  the  Su- 
preme Court  of  the  United  States.  It  was  there  main- 
tained that,  to  render  a  judgment  obnoxious  to  the  Bankrupt 
Act,  there  must  exist  in  the  mind  of  the  debtor  a  positive 
purpose  or  intent  to  defeat  or  delay  the  operation  of  the 
Act,  or  to  accomplish  something  which  the  Act  treated  as 
unlawful ;  that  it  would  be  immoral  for  him  to  oppose  or 
impede  his  creditor  by  false  or  dilatory  pleas  ;  that  he  was 
under  no  moral  or  legal  obligation  to  file  his  petition  in 
bankruptcy  ;  and,  as  the  result  of  these  propositions,  that 
the  debtor  could  not  be  presumed  to  have  been  actuated  by 
an  unlawful  purpose,  from  the  fact  that  he  neither  perpe- 
trated the  wrong  of  defending  against  a  just  claim,  nor 
made  an  application  to  the  courts  of  bankruptcy,  when  he 
was  under  no  obligation  to  make  such  application.1'1  In  such 
cases  the  intent  of  the  debtor  is  the  turning-point :  and  what 
this  intent  was,  must  be  determined  from  the  consideration 
of  all  the  attending  circumstances.17  While  an  unlawful  in- 
tent is  not  to  be  inferred  from  mere  "passive  non-resistance 
to  regular  judicial  proceedings,"  "  undoubtedly  very  slight 
evidence  of  an  affirmative  character  of  the  existence  of  a 
desire  to  prefer  one  creditor,  or  of  acts  done  with  a  view  to 
secure  such  preference,  might  be  sufficient  to  invalidate  the 
whole   transaction.     Such  evidence   might  be  sufficient  to 

is  Warren  v.  D.  L.  ct  W.  R.  W.  Co..  7  B.  R.  451 ;  5  Ch.  L.  X.  205 ;  In  re 
McGie,  2  Biss.  163;  In  re  Heller,  3  Biss.  153;  Wilson  v.  Brinkman,  2  B. 
R.  468;  Buchanan  v.  Smith,  16  Wall.  277;  5  Ch.  L.  N.  277. 

16  Wilson  v.  City  Bank,  17  Wall.  489;  6  Ch.  L.  N.  149;  9  B.  R.  97;  Brit- 
ton  v.  Payen.  9  B.  R.  445;  Partridge  v.  Dearborn,  9  B.  R.  474;  Ilenkel- 
man  v.  Smith.  12  B.  R.  121 ;  42  Md.  164;  Loueheim  r.  Henszey,  77  Penn. 
St.  305. 

"Little  v.  Alexander,  21  Wall.  500;  7  Ch.  L.  N.  339;  12  B.  R.  134. 


8         ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

leave  the  matter  to  a  jury,  or  to  support  a  decree,  because 
the  known  existence  of  a  motive  to  prefer  or  to  defraud  the 
Bankrupt  Act  would  color  acts  or  decisions  otherwise  of  no 
significance."18  When  a  judgment  is  sought  to  be  em- 
ployed to  secure  a  preference  forbidden  by  the  Bankrupt 
Act,  the  usual  and  most  convenient  method  of  thwarting 
this  purpose,  and  of  litigating  the  issues  necessarily  in- 
volved, is  by  filing  a  bill  in  equity  on  behalf  of  the  as- 
signee.19 

Sec.  4.  Validity  of  Judgments  Entered  after  the  Filing 
of  the  Petition  in  Bankruptcy. — Actions  pending  in  state 
courts  do  not  abate  by  virtue  of  proceedings  in  bankruptcy 
by  or  against  either  of  the  litigants.20  Section  5047  21  pro- 
vides that  the  assignee  may,  if  he  requires  it,  be  permitted 
to  prosecute  or  defend  actions  which,  at  the  commencement 
of  the  proceedings  in  bankruptcy,  are  being  prosecuted  or 
defended  by  the  bankrupt.  This  section  clearly  contem- 
plates that  all  pending  actions  shall  proceed  to  judgment; 
but  gives  the  assignee  ample  opportunity  to  protect  all  the 
rights  which  have  vested  in  him  by  virtue  of  the  assign- 
ment. If  he  does  not  interpose,  the  action  will  proceed  to 
judgment  in  the  same  manner  as  though  no  proceedings  in 
bankruptcy  had  been  instituted.  But,  by  section  5105,22  a 
creditor  who  has  proved  his  debt,  is  not  allowed  to  main- 
tain any  suit  against  the  bankrupt  therefor ;  and  all  pro- 
ceedings already  commenced  are  deemed  to  be  discharged. 
By  section  5106, 22  creditors  whose  debts  are  provable  are  not 
allowed  to  prosecute  to  judgment  any  action  thereon,  until 
the  question  of  the  bankrupt's  discharge  is  determined; 
pending  suits  are  to  be  stayed,  on  application  of  the  bank- 
is  Wilson  v.  City  Bank,  17  Wall.  489;  Beattie  v.  Gardner,  4  B.  E.  323; 
4  Ben.  479;  see  also  3  Cent.  L.  J.  651,  referring  to  Kipley  v.  Sears,  deci- 
ded by  Judge  Dillon;  In  re  J.  E.  Baker,  14  B.  R.  433;  14  A.  L.  J.  294. 

w Kellogg  v.  Russell,  11  B.  R.  121;  Warren  v.  Tenth  N.  B.,  7  B.  R. 
481;  10  Blatch.  493. 

20  in  re  Irving,  14  B .  R.  289:  Hewett  v.  Norton,  1  Woods,  68. 

21  Sec.  16  of  Act  of  1867. 

-"-Sec.  21  of  Act  of  1867,  contained  similar  provisions. 


ENFORCEMENT    OF   JUDGMENTS    AGAINST    BANKRUPTS.        i) 

nipt,  to  await  the  determination  of  the  question  of  the  dis- 
charge, provided  there  is  no  unreasonable  delay  in  endeav- 
oring to  procure  the  discharge  ;  but,  if  the  amount  due  is 
in  dispute,  the  suit,  by  leave  of  the  court  of  bankruptcy, 
may  proceed  for  the  purpose  of  ascertaining  such  amount. 
Thus,  it  will  be  seen  that,  in  many  cases,  even  where  the 
pending  proceedings  in  bankruptcy  are  properly  brought  to 
the  attention  of  the  state  court,  it  must  proceed  to  judg- 
ment;  and  the  judgment,  when  entered,  must  have  the 
same  validity  as  other  judgments  properly  obtained.  In 
the  case  of  provable  debts,  the  statute  provides  that  the 
stay  of  proceedings  shall  be  granted  "  upon  the  applica- 
tion of  the  bankrupt."23  The  assignee  may,  never- 
theless, obtain  a  stay  of  proceedings.24  But  it  is  evident 
that  the  court  need  not  take  judicial  knowledge  of  the 
bankruptcy  proceedings  ;  nor  would  it  be  proper  for  it  to 
refuse  to  proceed  in  those  cases  where  neither  the  assignee 
nor  the  bankrupt  seeks  the  benefit  of  the  proceedings  in 
bankruptcy.25  If  an  action  has  been  stayed,  the  stay 
should  be  revoked  if  it  appears  that  the  bankrupt  is  guilty 
of  unreasonable  delay  in  seeking  his  discharge.26  From  the 
fact  that  the  court,  in  which  an  action  is  pending,  is  not 
divested  of  its  jurisdiction  by  bankruptcy  proceedings  in- 
volving either  litigant,  we  infer  that  its  judgments,  given  in 
the  exercise  of  this  jurisdiction,  though  founded  in  error,  are 
not,  on  that  account,  void.  The  rendition  of  judgments 
against  bankrupts,  or  their  assignee,  establishes  either  that 
the  defendants  waived  their  rights,  or  else  that  the  court 
determined  that  the  case  was  one  in  which  it  was  proper  to 
give  the  judgment  entered.  The  judgment,  if  erroneous  or 
irregular,  should  be  corrected  by  appeal  or  by  some  appro- 
priate proceeding   in  the  tribunal    where    it    was    entered. 

23Rov.  St.,  Sec.  5106;  Sec.  21  of  Act  of  1S67. 

24  Sampson  v.  Burton,  4B.K.1;  5  Ben.  32:». 

25  Palmer  v.  Merrill,  57  Me.  2G;  Stone  v.  Nat'l  Bank,  39  Ind.  284. 

26 In  re  Belden,  6  B.  R.  443;    5  Ben.  47(3;  Dingee  v.  Becker,  9  B.  K. 
SOS;  31  Leg.  Int.  156. 


10  ENFORCEMENT  OF  JUDGMENTS  AGAINST  BANKRUPTS. 

Even  where  the  suit  is  instituted  in  a  state  court  subse- 
quent to  the  adjudication  of  bankruptcy,  the  judgment  in 
such  suit  is  not  on  that  account  void,  but  is  binding  upon 
all  the  defendants  upon  whom  the  summons  to  appear  was 
served  in  the  manner  prescribed  by  law,27  until  they  shall 
cause  it  to  be  vacated  or  reversed.  Nor  can  a  bankrupt  who 
permits  a  judgment  to  be  entered  against  him  by  default 
obtain  an  injunction  to  prevent  its  enforcement  against  him 
personally.28  If  an  action  is  pending  in  a  state  court  prior 
to  the  tiling  of  the  bankrupt's  petition,  it  will  properly  pro- 
ceed to  judgment  unless  the  bankrupt,  or  his  assignee,  dis- 
closes to  the  court  the  existence  of  the  adjudication  of 
bankruptcy.'3  Even  where  an  attachment  on  mesne  process 
has  been  levied  within  four  months  prior  to  the  tiling  of  the 
petition,  and  is  therefore  dissolved  by  the  provisions  of  sec- 
tion 5044, 30  the  assignee  is  not  warranted  in  treating  the 
court  issuing,  nor  the  officer  serving,  the  attachment  with 
contempt.  He  is  not  to  seize  the  property,  and  by  force 
wrest  it  from  the  possession  of  the  officer  of  the  state  tri- 
bunal. He  should  go  into  that  tribunal,  allege  and  estab- 
lish the  adjudication  of  bankruptcy  and  the  assignment 
made  in  pursuance  thereof,  and  ask  that  the  attachment  be 
dissolved,  and  that  the  officer  be  required  to  surrender  pos- 
session of  the  property.31  But,  by  section  5044,  an  assign- 
ment relates  back  to  the  commencement  of  the  proceedings 
in  bankruptcy,  and,  by  operation  of  law,  vests  title  in  the 

-'■  In  n  Davis,  8  B.  K.  167;  1  Saw.  C.  C.  260:  In  the  Matter  of  Sacchi, 
43  How.  Pr.  250;  Bradford  v.  Bice,  102  Mass.  472:  McKay  v.  Funk.  13 
B.  B.  334;  Brown  v.  Gibbons,  13  B.  B.  407. 

28  In  re  Tooker.  14  B.  B.  35;  Bellamy  v.  Woodson,  4  Ga.  175;  Steward 
v.  Green,  11  Paige,  535. 

29  Dunbar  v.  Baker.  104  Mass.  211 ;  Doe  v.  Childress.  21  Wall.  643;  7  Ch. 
L.  X.  201:  Palmer  v.  Merrill.  57  Me.  26:  Hewett  v.  Norton,  13  B.  B. 
276:  Yalliant  v.  Childress.  11  B.  B.  317;  Flanagan  v.  Pearson.  14  B.  B. 
37 :  Lenihan  v.  Haman.  6  Ch.  L.  X.  63:  55  X.  Y.  652;  8  B.  B.  557;  Eys- 
ter  v.  Gaff.  13  B.  B.  546;  8  Ch.  L.  X.  177 :  1  Otto.  521 ;  3  Cent.  L.  J.  250. 

so  See.  14  of  Act  of  1867. 

?-iKent  v.  Downing.  44  Ga.  116;  Johnson  v.  Bishop,  1  Woolw.  324;  8 
B.  B.  533;  Huber  v.  Klauberg,  4  Cent.  L.  J.  342. 


ENFORCEMENT   OF   JUDGMENTS    AGAINST    BANKRUPTS.      11 

assignee,  though  the  property  is  attached  on  mesne  process  ; 
and  dissolves  any  such  attachment  made  within  four  months 
prior  to  the  commencement  of  the  proceedings  in  bank- 
ruptcy. Under  the  operation  of  this  section,  the  dissolu- 
tion of  attachments  is  so  unequivocal,  that  a  sale,  made  un- 
der an  attachment  not  four  months  old,  is  probably  void, 
althoutrh  no  application  was  ever  made  for  the  release  of 
the  property  from  the  operation  of  the  writ.3'2  If  the  at- 
tachment was  levied  more  than  four  months  prior  to  the 
tiling  of  the  petition,  the  court  issuing  the  writ  may,  after 
the  adjudication  of  bankruptcy,  enter  a  judgment  author- 
izing the  sale  of  the  property  as  levied  upon  ;  and  a  sale  in 
pursuance  of  such  judgment  will  relate  back  to  the  levy, 
and  transfer  title  free  of  the  claims  of  the  bankrupt's  as- 
signee.33 

Sec.  5.  Enforcing  Judgments  Entered  Subsequent  to  the 
Filing  of  the  Petition  in  Bankruptcy  .—  In  the  preceding 
section  we  have  shown  that  a  judgment,  entered  against  a 
bankrupt  after  the  commencement  of  the  proceedings  in 
bankruptcy,  is  not,  for  that  reason,  void.  Kelief  against 
such  a  judgment  can  usually  be  obtained  by  the  bankrupt, 
on  prompt  application,  by  proving  a  state  of  facts  which  is 
sufficient  to  show  that  he  was  not  guilty  of  laches  in  not 
pleading  the  pending  proceedings  in  bankruptcy,  for 
the  purpose  of  preventing  the  entry  of  the  judgment.34 
Thus,  he  may,  on  motion,  obtain  a  perpetual  stay 
of  execution,  if  he  can  make  it  appear  to  the  court 
that,    when     his    petition    was   filed,    the     action     against 

•"-'Bracken  v.  Johnson,  4  Cent.  L.  J.  9;  15  B.  R.  106. 

33  Doe  v.  Childress,  21  Wall.  643 ;  7  Ch.  L.  N.  201 ;  Valliant  v.  Child- 
ress, 11  B.  R.  317;  Batehelder  v.  Putnam,  13  B.  R.  404;  Munson  v.  B. 
H.  &  E.  R.  R.  Co.,  14  B.  R.  173;  Stoddard  v.  Locke,  43  Vt.  574;  9  B.  R. 
71;  Daggett  v.  Cook,  37  Conn.  341;  Bates  v.  Tappan,  99  Mass.  376;  3  B. 
R.  647;  Leighton  v.  Kelsey,  57  Me.  85;  4  B.  R.  471;  Bowman  v.  Hard- 
ing. 56  Me.  559;  4  B.  R.  20;  May  v.  Conrtnay,  17  Ala.  L85;  Johnson  v. 
Collins,  116  Mass.  392;  Rowe  v.  Page,  13  B.  R.  366;  54  X.  II.  190;  Ma- 
son v.  Warthens,  7  West  Va.  532;  Mnnson  v.  B.  II.  &  E.  R.  R.  Co.,  14 
B.  R.  173. 

34  N.  H.  Savings  Bank  v.  Webster.  4S  X.  II.  21. 


12   ENFORCEMENT  OF  JUDGMENTS  AGAINST  BANKRUPTS. 

him  had  proceeded  so  far  that  he  had  no  opportu- 
nity to  avail  himself  of  the  proceedings  in  bankruptcy  for 
the  purpose  of  staying  such  action.35  If,  however,  he  has 
been  guilty  of  laches,  relief  will  be  denied.36  Assuming 
that  a  judgment  against  a  bankrupt,  entered  pending  the 
bankruptcy  proceedings,  has  been  procured  under  such  cir- 
cumstances that  he  is  not  entitled  to  its  vacation,  the  next 
inquiry  is  for  means  of  obtaining  its  satisfaction.37  If  an 
execution  is  issued,  it  is  evident  that  it  can  not  be  levied 
upon  any  property  which  has  vested  in  the  assignee  in 
bankruptcy,  except  when  the  judgment  is  but  the  means  of 
enforcing  some  lien  paramount  to  the  title  of  the  assignee. 
Property  acquired  subsequent  to  the  filing  of  the  bankrupt's 
petition  can,  no  doubt,  be  levied  upon.  The  most  difficult, 
as  well  as  the  most  unsettled,  question  concerning  judg- 
ments entered  pending  proceedings  in  bankruptcy,  is  this  : 
Can  such  judgments,  or  the  causes  of  action  on  which  they 
are  based,  be  proved  as  claims  against  the  estate  of  the 
bankrupt?  If  the  cause  of  action  was  not  provable  as  a 
claim,  then  certainly  the  judgment,  though  entered  pend- 
ing the  proceedings  in  bankruptcy,  can  not  be  so  proved.38 
But  usually  the  cause  of  action  is  of  such  a  nature  that  it 
did,  before  the  entry  of  the  judgment  thereon,  constitute  a 
provable  claim  against  the  estate  of  the  bankrupt.  No 
claim  can  be  allowed,  unless  it  was  due  or  existing  "  at  the 
time  of  the  commencement  of  proceedings  in  bankruptcy."39 

35  Monroe  v.  Upton,  50  N".  Y.  593. 

36  Monroe  v.  Upton,  50  N".  Y.  593;  Valkenburgh  v.  Dederick,  1  Johns. 
Ca.  133;  Cross  v.  Hobson,  2  Cai.  Ca.  102;  Manwarring  v.  Kouns,  35  Tex. 
171;  Park  v.  Casey,  35  Tex.  536. 

37  We  assume  in  this  section  that  a  judgment,  entered  after  the  filing  of 
the  bankrupt's  petition,  is  not  affected  thereby,  and  is  not  released  by 
his  subsequent  discharge.  Whether  this  assumption  is  correct  or  incor- 
rect, will  be  considered  in  the  section  on  the  judgments  affected  by  a 
discharge. 

88 Black  v.  McClelland,  12  B.  K.  481;  Kellogg  v.  Schuyler,  2  Den.  73; 
In  re  Hennocksburgh,  7  B.  K.  37;  6  Ben.  150;  Ellis  v.  Ham,  2S  Me.  3S5. 

3»  R.  S.,  sec.  5067.  Sec.  19  of  the  Act  of  1867,  Avas  somewhat  different 
in  its  terms. 


ENFORCEMENT    OF   JUDGMENTS    AGAINST    BANKRUPTS.      13 

A  judgment,  entered  subsequently  to  those  proceedings,  cer- 
tainly can  not  be  due  nor  existing  prior  thereto.  Moreover, 
it  is  well  known  that  a  judgment  usually,  for  most  purposes, 
is  a  complete  extinguishment  of  the  cause  of  action  out  of 
which  it  grew.  The  latter  is  drowned  or  merged  in  the 
former.40  Hence,  in  several  cases,  courts,  proceeding  to 
what  seems  to  us  logical  conclusions  from  conceded  legal 
principles,  have  affirmed  that  judgments,  entered  pending 
bankruptcy  proceedings,  are  new  debts  not  existing  at  the 
commencement  of  such  proceedings,  and,  therefore,  not 
provable  as  claims  therein  ;  "und,  farther,  that  the  causes  of 
action,  resulting  in  such  judgments,  are  thereby  merged 
and  extinguished,  and  thus  are  as  effectually  deprived  of 
their  capacity  to  be  proved  as  claims,  as  if  they  had  been 
terminated  by  actual  payment.41  It  is  also  urged  that  "the 
creditor,  by  taking  judgment,  and  so  changing  the  form  of 
his  debt,  and  securing  to  himself  the  benefit  of  conclusive 
and  permanent  evidence  of  it,  and  an  extension  of  the 
period  of  limitation  of  an  action  thereon,  is  held,  on  his 
part,  to  have  elected  to  look  to  the  debtor  personally,  and 
to  abandon  the  right  to  prove  against  his  estate  ;  and  the 
debtor,  on  the  other  hand,  who  might  have  protected  him- 
self by  moving  the  court  in  which  the  action  was  pending 
for  a  continuance,  in  order  to  afford  him  an  opportunity  to 
obtain  and  plead  a  certificate  of  discharge,  is  held,  by  omit- 
ting to  make  such  a  motion  before  judgment,  to  have 
waived  the  right  to  set  up  his  certificate  against  the  plaint- 
iff's claim  ;  and  therefore  the  rights  of  both  parties  must 
be  governed  by  the  judgment  which  the  one  has  moved  for, 
and  the  other  has  Buffered  to  be  rendered."42  But,  perhaps, 

40  Freeman  on  Judgments,  chapter  XI. 

«  Bradford  v.  Rice,  102  M;;<~.  172;  3  Am.  Rep.  4S3;  Holbrook  v.  Foss, 
27  Me.  441:  Cutter  v.  Evans.  115  Mass.  27;  In  re  D.  B.  Williams,  2  B. 
R.  22'.);  3  A.  L.  Reg.  374;  1  E.  T.  B.  107:  Pik>'  v.  McDonald,  32  Me. 418; 
In  re  A.  S.  Mansfield,  6  B.  R.  388;  In  re  Gallison,  •">  B.  R.  353;  2  L.  T. 
B. 105. 

42 Bradford  v.  Rice,  102  Mass.  47:!:  :!  Am.  Hep.  Is:'.;  Sampson  v.  I  'lark. 
2  Cush.  173;  Woodbury  v.  Perkins,  •">  Cush.  SO. 


14     ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

the  authorities  slightly  preponderate  in  favor  of  the  posi- 
tion that  the  taking  of  a  judgment,  pending  proceedings  in 
bankruptcy,  does  not' prevent  the  plaintiff  from  proving  his 
claim  against  the  bankrupt's  estate.43  These  authorities  do 
not  agree  whether  it  is  the  judgment  or  the  original  debt 
that  must  be  proved,  though  they  concur  in  excluding  from 
the  provable  claim  the  costs  of  entering  the  judgment.  On 
the  one  side  it  is  said  that,  because  the  original  debt  is 
merged,  the  judgment  must  be  proved.44  On  the  other 
side,  it  is  claimed  that,  because  the  judgment  had  no  exist- 
ence at  the  date  of  the  bankruptcy,  it  is  the  original  cause 
of  action  that  the  creditor  must  rely  upon  as  a  claim  against 
the  bankrupt's  estate.45  The  fact  that  those  who  insist, 
that  a  provable  debt  is  not  waived  or  extinguished  as  a 
claim  against  the  bankrupt's  estate  by  taking  a  judgment 
thereon  pending  the  bankruptcy  proceedings,  are  unable 
to  concur  in  any  common  defense  of  their  position,  is,  in 
our  judgment,  an  indication  that  the  position  itself  is  un- 
tenable in  principle.  If  this  position  shall  ultimately  pre- 
vail, as  is  altogether  probable,  the  result  must  be  recog- 
nized as  one  of  the  frequent  triumphs  which  considerations 
of  hardship  and  inconvenience  win  over  abstract  principles. 
What  has  already  been  said  concerning  judgments  pend- 
ing bankruptcy  proceedings  must  be  understood  as  apply- 
ing to  those  cases  only  which  are  prosecuted  without  leave 
of  the  courts  of  bankruptcy.  When  leave  to  proceed  by 
action  is  sought  and  obtained,  the  purpose  of  the  action  is 
confined  to  ascertaining  the  amount  due  to  the  creditor ; 
and  the  amount  thus  ascertained  may,  by  an  express  stat- 
utory provision,  be  proved  as  a  claim  in  bankruptcy.46 

« Monroe  v.  Upton,  50  N".  Y.  593;  Clark  v.  Rowling,  3  N.  Y.  216; 
Harrington  v.  McNaughton,  20  Vt.  293 ;  Downer  v.  Eowell,  26  Vt.  397. 

44  In  re  Crawford,  3  B.  E.  698;  1  L.  T.  B.  211;  3  L.  T.  B.  169;  In  re 
Stephens,  4  B.  R.  367;  4  Ben.  513;  2  L.  T.  B.  121. 

45 In  re  Stephen  Brown,  3  B.  R.  (Quart.).  145;  5  Ben.  1;  In  re  L.  H. 
Rosey,  8  B.  R.  509;  6  Ben.  507. 

46 R.  S..  Sec.  5106;  Sec.  21  of  Act  of  1867. 


ENFORCEMENT   OF    JUDGMENTS    AGAINST   BANKRUPTS.      15 

Sec.  6.  Proceedings  by  Execution  pending  Proceedings 
in  Bankruptcy. — By  Section  5105 47  of  the  Kevised  Stat- 
utes, if  a  creditor  proves  his  debt  or  claim,  "all  proceedings 
already  commenced,  or  unsatisfied  judgments  already  ob- 
tained thereon  against  the  bankrupt,  shall  be  deemed  to  be 
discharged  and  surrendered  thereby."  The  discharge  here 
spoken  of  is  evidently  not  an  extinguishment,  but  merely  a 
suspension  of  the  right  to  proceed  upon  the  debt.  If  a 
discharge  be  refused,  or  the  proceedings  terminate  without 
a  discharge,  or  if  the  debt  be  one  against  which  the  dis- 
charge does  not  operate,  then  it  is  evident  that  the  debt  may 
be  resuscitated  and  become  susceptible  of  enforcement.  If 
a  judgment  is  proved  as  a  claim  against  a  bankrupt,  it  is 
evident  that  no  steps  can  without  leave  of  the  court,  pend- 
ing the  bankruptcy  proceedings,  be  properly  taken  to  pro- 
cure its  satisfaction  out  of  his  assets.  And  if  any  levy 
should  be  made,  no  doubt  it  would  be  vacated  on  applica- 
tion to  the  court  issuing  the  writ.48  If  the  judgment  cred- 
itor does  not  prove  his  judgment  as  a  claim,  the  Bankrupt 
Act,  so  far  as  we  can  discover,  does  not  prohibit  him  from 
issuing  execution  pending  the  proceedings  in  bankruptcy. 
An  execution  would,  however,  probably  prove  unproduct- 
ive, unless  issued  for  the  enforcement  of  some  lien  anteda- 
ting the  bankruptcy.  No  levy  could  be  made  on  the  estate 
of  the  bankrupt ;  for  that,  by  operation  of  law,  vests  in  the 
assignee  at  the  date  of  the  filing  of  the  debtor's  petition. 
And,  in  any  event,  it  is  probable  that  a  stay  of  proceedings 
would  be  granted,  on  application  to  the  court  issuing  the 
writ,  to  allow  the  defendant  an  opportunity  to  obtain  his 
discharge,  if  it  appeared  that  said  discharge  would,  when 
obtained,  release  the  debtor  from  the  particular  judgment 
sought  to  be  asserted  against  him.  If,  however,  an  execu- 
tion issues  and  is  levied  prior  to  the  proceedings  in  bank- 
ruptcy, the  judgment  creditor  is  entitled  to  proceed  unless 
enjoined  from  so  doing.     If  the  judgment  is  one  on  which 

«  Sec.  21  of  Act  of  1867. 

^Dingee  v.  Becker,  9  B.  E.  50S;  31  Leg.  Int.  156. 


16      ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

an  execution  against  the  person  of  the  defendant  may  issue,, 
he  is  not  liable  to  arrest,  "unless  the  same  is  founded  on 
some  debt  or  claim  from  which  his  discharge  in  bankruptcy 
would  not  release  him."49  With  respect  to  the  judg- 
ments under  which  execution  may  issue  against  the  person 
of  the  debtor,  the  rule  seems  to  be  that,  if  the  defendant  is 
under  arrest  when  the  bankruptcy  proceedings  are  institu- 
ted, there  is  no  means  by  which,  pending  those  proceedings, 
he  can  procure  his  release  through  the  operation  of  the 
Bankrupt  Act,50  and  that,  on  the  other  hand,  if  he  is  not 
under  arrest  when  those  proceedings  are  instituted,  he  is 
entitled  to  exemption  during  their  pendency,  except  when 
pursued  for  some  ' '  debt  or  claim  from  which  his  discharge 
in  bankruptcy  would  not  release  him."51  It  has  been  held, 
and,  as  we  think,  with  great  propriety,  that  the  application 
for  release  from  arrest  should  first  be  made  to  the  court  under 
whose  writ  it  was  made.5'2  But  the  courts  of  bankruptcy 
are  not  inclined  to  accede  to  this  proposition,  and  are  in  the 
habit  of  themselves  adjudicating  upon  the  lawfulness  of  the 
arrest,  and  granting  releases  where  they  think  proper, 
without  first  compelling  resort  to  the  state  courts.53  Whether 
the  application  for  the  release  of  a  bankrupt  from  arrest 
under  execution  be  made  to  a  state  or  to  a  federal  court,  both 
he  and  the  plaintiff  are  bound  by  the  proceedings  in  the  court 
issuing  the  writ.  If,  from  those  proceedings  taken  as  a 
whole,  it  appears  that  the  claim  is  one  from  which  his  dis- 
charge in  bankruptcy  would  not  release  him,  he  will  not  be 
set  at  liberty.     In  other  words,  neither  party  will  be  al- 

48  Rev.  Stats.,  sec.  5107;  Sec.  26  of  Act  of  1867. 

50  In  re  Walker,  1  B.  E.  318;  1  Lowell.  222;  Hazleton  v.  Valentine.  2  B. 
R.  31 ;  1  Lowell,  270;  Minor  v.  Van  Xostraud,  4  B.  R.  10S;  1  Lowell,  458. 

si  Sec.  5107;  In  re  Wiggers,  2  Biss.  71;  In  re  Patterson,  1  B.  R.  307;  2 
Ben.  155;  In  re  Mifflin,  1  Penn.  L.  J.  146;  Horter  v.  Harlan,  7  B.  R. 
238;  29  Leg.  Int.  229;  In  re  Devoe,  2  B.  R.  27;  1  Lowell,  251 :  1  L.  T.  B. 
90;  Usher  v.  Pease,  116  Mass.  440. 

52  In  re  M.  O'Mara,  4  Biss.  506;  In  re  Migel.  1  B.  R.  4S1. 

&In  re  Williams  &  McPheeters.  11  B.  R.  145;  7  Ch.  L.  N.  49;  In  re 
Glaser,  1  B.  R.  366;  2  Ben.  180;  1  L.  T.  B.  57;  In  re  Borst,  2  B.  R.  171; 
In  re  Valk,  3  B.  R.  278;  3  Ben.  431;  In  re  Simpson.  2  B.  R.  47. 


ENFORCEMENT    OF   JUDGMENTS    AGAINST   BANKRUPTS.      17 

lowed  to  contest  the  matters  which  must  have   been   once 
determined  in  the  original  action.84 

Sec.  7.  Judgments  not  Released  by  Proceedings  in  Bank- 
ruptcy.— In  considering  this  question,  attention  must  be 
directed  to  sections  5117,  5118  and  5119  of  the  Revised 
Statutes.  The  first-named  section  declares  that  "  no  debt 
created  by  the  fraud  or  embezzlement  of  the  bankrupt,  or 
by  his  defalcation  as  a  public  officer,  or  while  acting  in  any 
fiduciary  character,65  shall  be  discharged  by  proceedings  in 
bankruptcy."  The  claim  has  sometimes  been  made  that, 
by  the  entry  of  a  judgment,  the  original  cause  of  ac- 
tion is  so  merged  that  it  can  not  be  referred  to  for  the  pur 
pose  of  giving  character  to  the  judgment,  and  taking- 
such  judgment  outside  of  the  operation  of  the  bankrupt's 
discharge.  But  the  better  opinion  is  that  the  doctrine  of 
merger  can  not  prevail  to  this  extent.  "  Whenever  the 
debt,  no  matter  whether  it  be  in  the  shape  of  a  judgment 
or  in  any  other  form,  was  created  by  fraud,  had  its  root  and 
origin  in  fraud,  there  it  is  not  to  be  discharged.  To  hold 
that  the  recovery  of  a  judgment,  in  an  action  where  the 
gravamen  of  the  complaint  is  fraud,  condones  that  very 
fraud,  by  so  merging  the  original  claim  that  the  judgment 
can  not  be  said  to  be  a  debt  created  by  the  fraud  set  out  in 
the  complaint  as  the  ground  for  recovering  the  judgment, 
would  fritter  away  entirely  the  good  sense  and  plain  inten- 
tion of  the  33d  section."50  If  a  judgment  is  shown  by 
competent  evidence  to  be  founded  on  any  of  the  causes  of 
action  specified  in  section  5117,  then  the  defendant  contin- 
ues liable,  notwithstanding  his  discharge.57     The  competent 

5*2>i  re  Pettis,  2  B.  K.  44;  7  A.  L.  Keg.  G95;  In  re  Valk.  3  B.  R.  278; 
3  Ben.  431;  In  re  Devoe,  2  B.  R.  27;  1  Lowell,  251;  1  L.  T.  B.  90;  In  re 
Kimball,  2  B.R.  204,  354;  2  Ben.  554;  6  Blatchf.  292;  Lire  Robinson, 
2  B.  R.  342;  3G  How.  P.  176;  6  Blatchf.  253;  2  L.  T.  B.  IS;  Cutter  v. 
Dingee,  14  B.  R.  294. 

55  Sec.  33  of  Act  of  1867. 

56  in  re  Patterson,  1  B.  R.  307;  2  Ben.  155.  The  33d  section  referred 
to  in  this  decision  corresponds  with  section  5117  of  the  Revised  Statutes. 

57  Warner  v.  Cronkhite,  15  B.  R.  52;  8  Ch.  L.  X.  17;  In  re  J.  W.  Sey- 

2 


18      ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

evidence  by  which  to  show  the  true  foundation  of  the  judg- 
ment must,  Ave  think,  be  limited  to  the  record  in  the  case 
in  which  the  judgment  was  rendered.58  Both  parties  ought 
to  be  prohibited  from  showing  any  facts  inconsistent  with 
the  record.59  A  judgment,  not  conclusive  against  the  de- 
fendant by  the  laws  of  the  state  where  it  was  entered, 
so  as  to  estop  him  from  denying  that  the  debt  was 
created  by  fraud,  is  released  by  his  discharge,  unless  it 
can  be  shown  that  such  debt  was  founded  in  fraud ;  and 
whether  this  showing  can  be  made  by  proof  outside  of  the 
record  is  not  fully  settled.60  If  a  plaintiff,  having  a  cause  of 
action  in  fraud,  waives  the  fraud  and  proceeds  to  obtain 
judgment  as  upon  a  contract,  he  can  not  thereafter  avoid 
the  defendant's  discharge  by  showing  that  the  debt  was 
created  by  fraud.61 

Section  5118  62  of  the  Revised  Statutes  provides  that  "no 
discharge  shall  release,  discharge,  or  affect  any  person  liable 
for  the  same  debt  for  or  with  the  bankrupt,  either  as 
partner,  joint  contractor,  indorser,  surety  or  otherwise." 
The  signification  of  this  section  is  too  obvious  to  require 
any  explanation.  By  it,  proceedings  in  bankruptcy  against 
one  judgment  debtor  leave  the  judgment  in  full  force 
against  his  co-debtors.63 

Section  5119  of  the  Revised  Statutes64  further  limits  the 
operation  of  discharges  in  bankruptcy  to  such  "  debts, 
claims,    liabilities  and  demands  "  as  were  or  might   have 

mour,  6  Int.  Kev.  Kecord,  61 ;  In  re  Whitehouse,  4  B.  R.  63 ;  1  Lowell, 
429;  Whitaker  v.  Chapman,  3  Lans.  155;  In  re  Patterson,  1  B.  R.  307; 
2  Ben.  155;  In  re  W.  E.  Robinson,  2  B.  R.  342;  6  Blatchf.  253;  Flana- 
gan v.  Pearson,  14  B.  R.  37;  42  Tex.  1 ;  Homer  v.  Spelman,  78  HI.  206. 

58  See  cases  just  cited. 

59 Z»  re  J.  S.  Wright,  2  B.  R.  (Quart.)  57;  Palmer  v.  Preston,  45  Vt. 
154;  12  Am.  R.  191 ; ;  Flanagan  v.  Pearson,  42  Tex.  1 ;  14  B.  R.  37 ;  In  re 
Robinson,  2  B.  R.  342;  6  Blatchf.  253. 

go  Shuman  v.  Strauss,  52  N".  Y.  404;  10  B.  R.  300;  34  N.  Y.  Super.  Ct.  6. 

61  Palmer  v.  Preston,  45  Vt.  154;  12  Am.  R.  191. 

62  Sec.  33  of  Act  of  1867. 

63  Linn  v.  Hamilton,  34  N.  J.  L.  305;  In  re  Levy,  1  B.  R.  220;  2  Ben. 
169. 

64  Sec.  34  of  Act  of  1867. 


ENFORCEMENT  OF  JUDGMENTS  AGAINST  BANKRUPTS.   19 

been  proved  against  the  estate  in  bankruptcy.  By  this 
section,  all  judgments  provable  in  bankruptcy  are  released, 
unless  they  fall  within  the  prohibitions  of  section  5117  or 
5118.  Hence,  every  provable  judgment  founded  in  tort 
is  released  by  the  bankrupt's  discharge,  unless  the  tort  is 
within  the  provisions  of  section  51 18.65  The  chief  ques- 
tion arising  in  regard  to  judgments  under  section  5119  of 
the  Revised  Statutes  is,  whether  judgments  entered  ponding 
the  proceedings  in  bankruptcy,  on  causes  of  action  existing 
prior  to  such  proceedings,  may  be  treated  as  provable  as  claims 
against  the  estate  of  the  bankrupt.  The  question  has  already 
been  considered  in  section  five.  It  was  there  shown  to  be 
involved  in  insoluble  doubt.  A  like  doubt  exists  in  regard 
to  the  effect  of  a  discharge  upon  such  judgments.  All  that 
can  be  said  is,  that  in  many  courts  such  judgments  are  re- 
garded as  within  the  scope  of  the  discharge;66  while,  in 
probably  an  equal  number  of  courts,  the  discharge  is  treated 
in  such  circumstances  as  entirely  inoperative.67  If  an  action 
be  pending  against  a  bankrupt  before  or  during  the  exist- 
ence of  the  proceedings  in  bankruptcy,  and  a  judgment  be 
entered  therein  after  the  granting  of  his  discharge,  such 
discharge  does  not  release  the  judgment. GS  The  entry  of  a 
judgment  against  a  defendant  necessarily  implies  that  he  is 
then  liable  for  the  amount  of  such  judgment.  If,  at  a  sub- 
sequent date,  he  undertakes  to  show  that  by  some  means 
the  cause  of  action  against  him  terminated  before  the  entry 
of  the  judgment,  he  tenders  an  issue  which  ought  not  to 
be  made  the  subject  of  inquiry  as  long  as  the  judgment  re- 
mains in  force.      "  The  obstinacy  with  which  litigants  press 

65  In  re  Wiggers,  2  Biss.  71;  Manning  v.  Keyes,  9  R.  I.  224:  Comstock 
v.  Grout,  17  Vt.  512;  In  re  Comstock,  22  Vt.  642. 

66  Harrington  v.  MeXanghton,  20  Vt.  293;  Dresser  v.  Brooks.  3  Barb. 
429;  Johnson  v.  Fitzhugh,  3  Barb.  Ch.  360;  McDonald  v.  Ingrahani.  30 
Miss.  389;  Clark  v.  Rowling.  3  N.  Y.  216;  Rogers  v.  Ins.  Co.,1  La.  Ann. 
161 ;  Dick  v.  Powell,  2  Swan,  632. 

67  Bradford  v.  Rice,  102  Mass.  472;  3  Am.  Rep.  483;  Ellis  v.  Ham.  28 
Me.  385;  Kellogg  v.  Schuyler,  2  Den.  73;  Uran  v.  Houdlette,  36  Me.  15; 
Roden  v.  Jaco,  17  Ala.  344. 

esHollister  v.  Abbott,  31  N.  H.  442;  Rees  v.  Butler,  IS  Mo.  173. 


20     ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

their  claims  upon  the  attention  of  courts,  is  such  that  it  is 
not  uncommon  for  matters  once  fully  determined  to  be 
again  made,  or  at  least  attempted  to  be  made,  the  subjects 
of  judicial  inquiry.  Sometimes,  the  circumstances  attend- 
ing the  former  decision  are  such  as  to  render  the  application 
of  the  law  of  res  judicata  apparently  a  matter  of  great  in- 
justice. Hard  cases  have  been  characterized  as  the  quick- 
sands of  the  law.  Such  cases  are  quick-sands  in  which 
the  law  of  res  judicata  sometimes  sinks  so  far,  that 
the  judges  are  entirely  unable  to  see  it,  or  even  to  remem- 
ber it.  Generally,  however,  such  is  not  the  case  ;  and  the 
instances  are  comparatively  few,  in  which  any  cause  of  ac- 
tion or  matter  of  defense  is  allowed  to  prevail,  where  it  is 
inconsistent  with  the  facts  necessary  to  uphold  any  previous 
adjudication  between  the  same  parties."69  If  a  judgment 
debtor  undertakes  to  show  that  the  judgment  ought  not  to 
have  been  entered  against  him  because  of  a  discharge,  or 
of  pending  proceedings  in  bankruptcy,  then  he  offers  to  re- 
open an  issue  which  either  was  litigated  or  ought  to  have 
been  litigated  prior  to  the  rendition  of  the  judgment.  If  the 
issue  was  in  fact  presented  and  determined,  then  he  is  un- 
questionably bound  b}r  that  determination.  If,  through  his 
neglect,  it  was  not  presented  for  determination,  he  ought 
equally  to  be  bound  by  the  judgment  against  him  and  pre- 
cluded from  asserting  his  discharge.  If,  without  fault  or 
laches  on  his  part,  he  failed  to  present  this  issue,  then  he 
ought  to  take  such  proceedings  as,  by  opening  the  judg- 
ment, will  enable  him  to  present  it.  Otherwise  he  ought 
to  be  held  liable  to  satisfy  the  judgment  against  which  he 
makes  no  complaint. 

Sec.  8.  Judgment  and  Execution  Liens  are  not  Extin- 
guished by  Bankruptcy. — When  a  judgment  is  in  existence 
against  a  bankrupt,  the  judgment  creditor  will  seek  to  make 
it  productive  by  proceeding  either  in  the  court  of  bank- 
ruptcy or  in  the  court  where  it  was  rendered ;  or  it  may 
happen  that  circumstances  will  arise  making  it  proper  to 

69 Freeman  on  Judgments,  sec.  284a.    See  Ibid.,  sees.  285  to  289. 


ENFORCEMENT   OF   JUDGMENTS    AGADTOT    BANKRUPTS.      21 

proceed  in  both  courts.  If  the  judgment  is  not  :i  lien  on 
the  bankrupt's  estate,  or  has  not  been  followed  by  an  exe- 
cution or  lew  constituting  a  lien,  it  is  no  more  than  a  sim- 
ple unpreferred  claim  ;  and,  if  the  plaint  ill'  wishes  to  secure 
its  payment  out  of  the  assets  in  the  hands  of  the  assignee, 
he  must  present  it  and  procure'  its  allowance  in  the  same 
manner  as  other  unsecured  claims.  It  is  only  when  a  judg- 
ment is  a  lien,  or  the  foundation  upon  which  a  lien  rests, 
that  its  assertion  is  likely  to  call  for  special  attention  or  to 
occasion  special  resistance  in  the  bankruptcy  court.  Let 
us  nosv  inquire  when  a  judgment  must  be  treated  as  a  valid 
lien,  or  as  the  foundation  of  a  valid  lien,  against  the  estate 
of  the  bankrupt.  All  liens  are  preserved  in  bankruptcy,70 
except  those  based  on  attachments  on  mesne  process  levied 
within  four  months  before  the  filing  of  the  petition,  and 
those  which  can  be  avoided  by  showing  that  they  were 
procured  or  preferred  with  a  view  of  giving  the  preference 
prohibited  by  sections  5021  and  5128,  to  which  reference 
has  already  been  made.  But  no  valid  lien  against  the 
estate  of  a  bankrupt  can  be  created  after  such  estate  has, 
in  contemplation  of  law,  vested  in  his  assignee.  And 
the  title  of  the  assignee,  by  virtue  of  the  provisions  of 
section  5044,  relates  "  back  to  the  commencement  of  the 
proceedings    in   bankruptcy.     Every  judgment71  or  execu- 

ro In  re  Hambright,  2  B.  R.  49S;  2  L.  T.  B.  61;  1  Ch.  L.  N.  201;  Aus- 
tin v.  O'Reilly,  2  Cent.  L.  J.  455 ;  House  v.  Swanson,  7  Heisk.  32 ;  Haugh- 
ton  v.  Eustis,  5  Law  Rep.  505;  In  re  Angler,  4  B.  R.  619;  10  A.  L.  Reg. 
(N.  S.)  190;  1  L.  T.  B.  4S;  In  re  Hester,  5  B.  R.  285;  In  re  X.  Y.  M.  S. 
Co.,  2  B.  R.  74;  In  re  W.  H.  Wiley,  4  Biss.  171 ;  In  re  Perdue,  2  B.  R. 
183;  2  West.  Jur.  279;  The  Ironsides,  4  Biss.  51S;  Parker  v.  Muggridge, 
2  Story.  334;  Fletcher  v.  Morey,  2  Story.  555;  In  re  Wynne,  I  B.  R.  23; 
2  L.  T.  B.  116;  9  A.  L.  Reg.  (X.  S.)  627:  Avery  v.  Hackley.  20  Wall. 
407;  Phillips  v.  Bowdoin,  14  B.  R.  43;  Hatcher  v.  Jones.  14  B.  R.  387; 
Barron  v.  .Morris,  15  B.  It.  371;   Wilcox  v.  L'ollanl.  9  Ch.  L.  X.  L80. 

TiMeeks  v.  Whatley.  10  B.  R.  501;  Phillips  v.  Bowdoin,  14  B.  R.  13; 
Winship  v.  Phillips,  14  B.  R.  50;  In  re  Smith  and  Smith,  1  B.  R.  599;  2 
Ben.  122;  1  L.  T.  B.  112;  Catlin  v.  Hoffman,  9  B.  R.  342;  2  Saw.  C.  C. 
486;  Witt  v.  Hereth,  S  Ch.  L.  X.  41;  13  B.  R.  106;  Webster  v.  Wool- 
bridge,  3  Dill.  71 :  In  re  Cook,  2  Story  C.  C.  376:  Partridge  v.  Dearborn, 
9  B.  R.  474;  Haworth  v.  Travis.  13  B.  R.  145;  Livingston  v.  Livingston, 


22   ENFORCEMENT  OF  JUDGMENTS  AGAINST  BANKRUPTS. 

tion  n  lien,  or  lien  created  by  the  levy  of  an  execution,73  which, 
anterioigto  the  commencement  of  the  proceedings  in  bank- 
ruptcy ,?was  a  lien  against  the  estate  of  the  bankrupt,  con- 
tinues in  force  against  such  estate  in  the  hands  of  the  as- 
signee, unless  he  can  show  that  it  was  procured  or  suffered 
to  give  a  preference  forbidden  by  the  Bankrupt  Act. 

Sec.  9.  Enforcing  Judgment  and  other  Liens  in  Courts 
of  Bankruptcy . — When  a  judgment  creditor  has  either  of 
the  liens  specified, in  the  preceding  section  of  this  article, 
and  desires  to  obtain  the  benefit  thereof  by  the  aid  of  the 
court  of  bankruptcy,  he  should  first  prove  his  claim  as  a 
secured  creditor.74  He  may  then,  by  section  5075,  be  ad- 
mitted as  a  creditor  for  the  balance  of  the  debt  after  de- 
ducting the  value  of  the  property  subject  to  his  lien,  to  be 
ascertained  by  agreement  between  him  and  the  assignee, 
or  by  a  sale  thereof ;  or  he  may  release  his  claim  to  the 
assignee  and  prove  his  whole  debt ;  or  he  may  purchase  the 
assignee's  right  of  redemption  ;  or  he  may  apply,  at  any 
time  after  the  appointment  of  the  assignee,  to  the  court  to 
have  the  property  sold  and  the  proceeds  applied  to  the  sat- 
isfaction of  his  claim.75  The  assignee  may  apply  to  the 
court  and  procure  an  order  authorizing  him  to  sell  the 
property,  either  subject  to  or  free  from  the  lien.76     In  case 

2  Cai.  Cas.  300;  In  re  John  McGilton,  7  B.  E.  294.  But  if  the  judgment 
is  not,  at  the  commencement  of  the  bankruptcy  proceedings,  a  perfect 
and  vaiid  lien  by  the  laws  of  the  state,  it  is,  of  course,  no  lien  against 
the  estate  of  the  bankrupt.    In  re  Mcintosh,  2  B.  B.  506;  In  re  Mebane, 

3  B.  R.  347;  In  re  Cozart,  3  B.  R.  508. 

72/w  re  Weeks,  4  B-  R-  364;  2  Biss.  259;  Wilson  v.  Childs,  6  Ch.  L.  N. 
27;  Horter  v.  Harlan,  5  Ch.  L.  X.  374;  Witt  v.  Hereth,  8  Ch.  L.  N.  41. 
Contra,  In  re  Tills  &  May,  11  B.  R.  214. 

73  In  re  Kerr,  2  B.  R.  388;  2  L.  T.  B.  39;  Swope  v.  Arnold,  5  B.  R.  148; 
In  re  Hughes,  7  Ch.  L.  N.  162;  In  re  Bernstein,  1  B.  R.  199;  2  Ben.  44; 
34  How.  Pr.  289;  Haughey  v.  Albin,  2  B.  R.  399;  2  Bond,  244;  2  L.  T. 
B.  47;  Beers  v.  Place.  4  B.  R.  159;  Armstrong  v.  Rickey,  2  B.  R.  473;  1 
Ch.  L.  N.  145. 

74  In  re  Bigelow,  1  B.  R.  632;  2  Ben.  480;  1  L.  T.  B.  95. 

75 In  re  Grinnell,  9B.  R.  29;  In  re  T.  R.  Stewart,  1  B.  R.  278. 

76 In  re  Barrow,  1  B.  R.  4S1;  1  L.  T.  B.  63;  In  re  McClellan,  1  B.  R. 
289;  In  re  National  Iron  Co.,  S  B.  R.  422;  20  Pitts.  L.  J.  208;  30  Leg. 
Int.  272;  Sutherland  v.  L.  S.  C.  Co.,  9  B.  R.  298;  1  Cent.  L.  J.  127. 


ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS.     23 

the  assignee  wishes  to  sell  free  of  all  liens,  he  should  give 
the  lien-holders  notice  of  his  intention  to  apply  to  th<'  court 
for  authority  so  to  do."  The  funds  realized  from  a  sale 
made  free  of  liens  must  he  treated  as  subject  to  the  same 
liens  from  which  the  property  was  freed  for  the  purpose  of 
being  sold.  Property  sold  by  the  assignee  will  be  subject 
to  all  liens  from  which  it  does  not  clearly  appear  to  have 
been  freed  by  the  order  of  the  court.7" 

Sec.  10.    Gases  where    Creditor  may  Proceed,  in  State 
Court  after  Presenting  his  Judgment  as  a  claim  against  the 
Bankrupt. — The  only  provision  of  the  statute  in  express 
terms  forbidding  the  execution  of  judgments  pending  pro- 
ceedings in  bankruptcy  is  to  be  found  in  section  5105.  By 
that  section,  "  no  creditor  proving  his  debt  or  claim  shall 
be  allowed  to  maintain  any  suit  at  law  or  in  equity  therefor 
against  the  bankrupt,  but  shall  be  deemed  to  have  waived 
all  right  of  action  against  him  ;  and  all  proceedings  already 
commenced  or  unsatisfied  judgments  already  obtained  there- 
on against  the  bankrupt  shall  be  deemed  to  be  discharged 
and  surrendered  thereby.'.'     While  a  portion  of  this  section 
seems,  when   considered  by   itself,  to   discharge,   uncondi- 
tionally, those  judgments  which  are  proved  as  claims  against 
the  estate  of  the  bankrupt,  yet  it  is  evident  from  the  whole 
section,  and   from  the   general   purpose  and   result  of  the 
proceedings  in  bankruptcy,  that  a  judgment  is  not,  by  be- 
ing proved  against  the   bankrupt,  so   extinguished  that  it 
can  not  under  any  circumstances  thereafter  be  enforced  by 
execution.     The  judgment  creditor   may  purchase   the   as- 
signee's right  of  redemption,  or  he  may  ask  to  be  admitted 
as  a  creditor  for  so  much  only  of  his  judgment  as  remains 
unpaid  after  deducting  the  value  of  the  property  as  ascer- 
tained by  agreement  between  him  and  the  assignee  ;   or  the 
property  may,   by  order   of  the  court  of  bankruptcy,    be 
sold  subject  to  the  judgment  or  execution  lien;    or   the 

"Foster  v.   Ames.  2  B.  E.  455;  1  Lowell,  313;  Ray  v.  Brigham,  L2  B. 
R.  145;  25  La.  An.  600;  Meeks  v.  Whatley,  10  B.  R.  498. 
78  In  re  McGilton,  7  B.  R.  294;  3  Biss.  144;  5  Ch.  L.  N.  1. 


24      ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

property  subject  to  the  lieu  may  have  been  sold  by  the 
bankrupt  prior  to  the  filing  of  his  petition,  or  may,  from 
some  other  cause,  not  vest  in  the  assignee.  In  all  these 
cases  it  is  evident  that  the  creditor  must,  where  such  a 
course  is  necessary  to  realize  the  fruits  of  his  lien,  be  au- 
thorized to  proceed  in  the  state  courts.79  Whether  the 
proving  of  a  claim  against  a  bankrupt's  estate,  without  dis- 
closing that  it  is  secured,  is  a  waiver  of  the  security  is  not 
yet  settled.  A  majority  of  the  judges  are  certainly  of 
the  opinion  that  it  is  a  waiver.80  It  has  been  also  held 
"  that  a  creditor  who  has  a  lien  upon  the  property  of  his 
debtors,  by  virtue  of  a  judgment,  execution  and  levy,  or  as 
secured  by  garnishment,  filing  a  petition  for  adjudication  of 
bankruptcy  without  reference  to  such  lien  or  security, 
thereby  waives  and  relinquishes  the  same,  and  stands  be- 
fore the  court  as  an  unsecured  creditor."81  The  reasoning 
upon  which  these  decisions  rest  is  that,  by  concealing  his 
security,  the  creditor  may  perpetrate  a  fraud  on  the  other 
creditors,  by  obtaining  in  bankruptcy  a  dividend  on  his 
whole  debt,  when,  if  the  truth  were  known,  he  could  obtain 
a  dividend  only  on  the  balance  after  deducting  the  value  of 
the  security.  If  from  the  proofs  presented  it  appears  that 
the  debt  is  secured,  no  concealment  can  be  justly  charged 
on  the  creditor,  and  he  ought  not  to  be  held  to  have  waived 
his  lien,  unless  he  does  so  in  express  terms  ;8'2  and  the  Su- 
preme Court  of  Iowa  has  held  that  the  proving  of  a  debt 
"as  a  general  claim  "  will  not  be  deemed  a  waiver  of  the 
security,  unless  it  appears  affirmatively  that  the   creditor 

™ Phillips  v.  Bowdoiu,  14  B.  E.  43;  Wiuship  v.  Phillips,  14  B.  E.  51; 
Jones  v.  Lellyett,  39  Ga.  64;  Douglas  v.  St.L.  Z.  Co.,  56  Mo.  388;  King 
v.  Bowman.  24  La.  An.  506;  Cummings  v.  Clegg,  14  B.  R.  49;  Seibel  v. 
Simeon,  62  Mo.  255. 

soHaxtun  v.  Corse,  2  Barb.  Ch.  506;  4  Echv.  Ch.  585;  Stewart  v.  Isi- 
dor,  1  B.  E.  485;  5  Abb.  Pr.  (N.  S.),  68;  In  re  Stansell,  6  B.  E.  183;  In 
re  Granger  &  Sabin,  8  B.  E.  30;  In  re  Jaycox  &  Green,  S  B.  E.  241; 
Hoadley  v.  Cawood,  40  Inch  239;  Briggs  v.  Stephens.  7  L.  E.  281 ;  Heard 
v.  Jones,  56  Ga.  271. 

^In  re  Bloss,  4  B.  E.  147;  2  L.  T.  B.  126. 

&Un  re  Brand,  3  B.  E.  324;  2  L.  T.  B.  66. 


ENFORCEMENT   OF   JUDGMENTS   AGAINST    BANKRUPTS.      25 

tailed  to  disclose  the  existence  of  his  security.88  By  sec. 
5075  ^  of  the  Revised  Statutes  a  secured  creditor  may,  on 
releasing  or  conveying  his  claim  to  the  assignee,  be  admit- 
ted to  prove  his  whole  debt.  Conceding  that,  under  this 
section,  the  proof  of  a  secured  claim  as  unsecured  entitles 
the  assignee  to  be  subrogated  to  the  rights  of  the  creditor, 
the  Supreme  Court  of  Massachusetts  has  held  thai  only  the 
assignee  can  invoke  the  benefit  of  the  rule  ;  and,  therefore, 
that  the  creditor  can,  after  so  proving  a  claim  secured  by 
mortgage,  enforce  his  lien  against  the  mortgagee.86 

Sec.  11.  Enforcing  Judgments  never  Presented  to  the 
Court  of  Bankruptcy. — The  judgments  referred  to  in  the 
preceding  section  as  being  discharged  or  surrendered,  em- 
brace those  only  which  have  been  proved  against  the  bank- 
rupt, or  which  are  based  upon  claims  which  have  been  so 
proved.  Judgments  in  actions  for  recovery  of  specific 
property,  real  or  personal,  instituted  prior  to  the  filing  of 
the  petition,  may  be  enforced  by  the  form  of  execution  ap- 
propriate to  confer  the  relief  granted  thereby.  The 
assignee  is  bound  by  the  doctrine  of  Us  pendens  to  the 
same  extent  as  any  other  person  acquiring  title  pendente 
lite  J*  Or,  in  other  words,  he  acquired  the  estate  of  the 
bankrupt,  subject  to  pending  suits  affecting  the  title  thereto. 
We  come  now  to  a  more  difficult  question,  that  of  the  rights 
of  a  judgment  creditor  who  does  not  choose  to  present  his 
claim  against  the  estate  of  the  bankrupt,  preferring  rather 
to  seek  its  enforcement  in  the  state  courts.  If  such  cred- 
itor had  no  valid  lien  against  such  estate  when  the  petition 
was  filed,  then  it  is  clear  that  he  has  no  temptation  to  pro- 
ceed in  the  state  courts  ;  for  he  can  not  there  create  any 
lien  or  claim  against  the  estate  after  the  commencement  of 
the    proceedings    in   bankruptcy.      But    if   he   has  a    lien, 

88  Hatch  v.  Seely,  13  15.  R.  380. 
84Sec.  -Jo  <,f  An  of  L867. 
85Cook  v.  Farrington,  U»i  Mass.  212. 

seBanin  v.  Stern,  1  Rich.  (X.  S.)  415;  Eyster  v.  Gaff,  L3  B.   B.  546;  S 
Ch.  L.  X.  177;  1  Otto.  521 ;  U  Cent.  L.  .1.  250. 


26     ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

valid  in  both  the  national  and  state  courts,  he  may  desire 
to  enforce  it  in  the  latter  rather  than  in  the  former.  May 
this  desire  be  gratified?  and,  if  so,  when  and  how?  Many 
cases  may  be  found  in  which  the  general  assertion  is  made 
that  all  liens  against  the  estates  of  bankrupts  must  be  en- 
forced in  the  courts  of  bankruptcy.87  There  is  certainly 
nothing  in  the  statute  which  directly  points  to  this  result. 
The  statute  nowhere  declares  that  the  adjudication  of  bank- 
ruptcy shall,  of  itself,  operate  as  a  prohibition  against  the 
assertion  of  pre-existing  Mens  in  the  state  courts.  When 
the  courts  of  bankruptcy  assumed  that  the  mere  adjudication 
of  bankruptcy  brought  the  bankrupt  and  all  his  assets  so 
exclusively  within  their  jurisdiction  that  no  one  could  law- 
fully, even  in  the  absence  of  any  special  inhibition,  pursue 
his  legal  remedies  elsewhere,  they  arrogated  an  authority 
which  was  founded  rather  upon  their  notions  of  what  the 
Bankrupt  Act  ought  to  have  done,  than  upon  what  it  pro- 
fessed to  do.  The  Supreme  Court  of  the  United  States  has, 
however,  on  each  recurring  opportunity,  curbed  the  unsup- 
ported pretensions  of  the  subordinate  tribunals.  It  has 
insisted  upon  that  interpretation  which,  without  sacrificing 
the  objects  of  the  statute,  would  concede  due  respect  both 
to  the  state  and  the  national  authorities,  and  would  avoid 
needless  collision  between  them.  These  principles  have  long 
been  established,  "  that  where  the  jurisdiction  of  a  court, 
and  the  right  of  a  plaintiff  to  prosecute  his  suit  in  it,  have 
once  attached,  that  right  can  not  be  arrested  or  taken  away 
by  proceedings  in  another  court  ;  "  ^  and  that  where  prop- 
erty has  been  taken  into  the  possession  of  the  officers  of  a 
court,  it  does  not  allow  such  possession  "to  be  disturbed 

87  Blum  v.  Ellis,  73  ST.  C.  293;  13  B.  E.  345;  8  Ch.  L.  N".  162;  Taylor  v. 
Bonnett,  38  Tex.  521;  In  re  Bridgman,  2  B.  E.  252;  In  re  Bigelow,  IB. 
E.  632;  In  re  Ruehle,  2  B.  E.  577;  In  re  Frizelle,  5  B.  E.  122;  Stuart  v. 
Hines,  6  B.  E.  416;  In  re  Hufnagel,  12  B.  E.  556;  In  re  Whipple,  13  B. 
E.  373;  In  re  Brinkman,  7  B.  E.  421;  Davis  v.  Anderson,  6  B.  E.  145; 
Boone  v.  Eevis,  44  Tex.  3S4. 

ss  Peck  v.  Jenness,  7  How.  U.  S.  625 ;  Payne  v.  Drewe,  4  East,  523 ;  Tay- 
lor v.  Carryl,  20  How.  U.  S.  5S3. 


ENFORCEMENT    OF   JUDGMENTS    AGAINST    BANKRUPTS.      27 

by  a  party,  whether  claiming  by  title  paramount  or  under  the 
right  which  they  were  appointed  to  protect,  as  their  posses- 
sion is  the  possession  of  the  court."80  By  the  proper  applica- 
tion of  these  two  principles,  most  of  the  questions  of  conflict 
between  the  state  and  national  authorities  concerning  pro- 
ceedings against  the  estates  of  bankrupts  may  be  correctly 
determined.  If  an  action  to  enforce  a  lien  against  specific 
property  is  pending  in  a  slate  court  when  the  petition  in 
bankruptcy  is  filed,  such  court  is  not  thereby  divested  of 
its  jurisdiction  over  the  action.  In  such  a  case,  if  the 
plaintiff  proves  his  claim  against  the  bankrupt,  "the  pro- 
ceedings already  commenced"  thereon  are  by  section  5105 
"deemed  to  be  discharged."  If,  on  the  other  hand,  the 
plaintiff  does  not  prove  his  debt  in  bankruptcy,  the  suit 
maybe  stayed  until  the  question  of  the  defendant's  discharge 
is  determined,  provided  there  is  no  unreasonable  delay  in 
endeavoring  to  procure  it.90  The  assignee  may  also  be 
admitted  to  defend  the  suit.  But  the  state  court  can  not 
be  divested,  through  the  action  of  the  bankruptcy  courts, 
of  its  ultimate  right  to  determine  that  suit,  and  all  the 
issues  therein  which  it  would  have  been  competent  to  deter- 
mine if  no  petition  in  bankruptcy  had  been  filed.91  Hence, 
if  an  action  to  foreclose  a  lien  and  obtain  the  sale  of  prop- 
erty is  pending  when  the  proceedings  in  bankruptcy  are 
commenced,  it  may  lawfully  continue  to  judgment ;  and  a 
sale  under  such  judgment  will  vest  a  title  in  the  purchaser, 
taking  effect  by  relation  at  the  inception  of  the  lien,  and 
thereby  divesting  the  title  of  the  assignee.  This  result 
will  be  accomplished,  whether  the  assignee  was  made  a  party 
to  the  proceeding  or  not.  He  shares  the  same  fate  as  any 
other  person  acquiring  an  interest  pendente  lite.'J-     If  the 

®Taylor  v.  Carryl,  20  How.  V .  S.  594;  Xoe  v.  Gibson,  7  Paige,  513. 

w  See  Sec.  5106. 

9i  Sampson  v.  Burton,  4B.E.1:  5  Ben.  325  :  Stone  v.  B.  X.  Bank,  39 
Ind.  284;  In  re  Clarke.  3  B.  R.  491;  4  Ben.  88;  Clark  v.  Binninger,  5  B. 
R.  255;  39  How.  Pr.  363;  In  re  Wynne.  I  B.  R.  28;  2  L.  T.  B.  116;  9  A. 
L.  Reg.  (X.  S.)  627. 

MEyster  v.  Gaff,  13  B.  R.  546;  8  Ch.  L.  N.  177;  1  Otto.  521;  3  Cent. 
L.  J.  250. 


28   ENFORCEMENT  OF  JUDGMENTS  AGAINST  BANKRUPTS. 

state  court  has  possession  of  property,  either  by  its  re- 
ceiver,93 or  by  a  sheriff  under  the  levy  of  a  valid  execution,94 
its  possession  can  not  be  disturbed.  In  the  latter  case  the 
sheriff  should  proceed  to  sell  the  property,  and  turn  over  to 
the  creditor  so  much  of  the  proceeds  as  is  necessary  to  sat- 
isfy the  lien  of  the  levy.95  So,  if  the  property  be  in  the 
possession  of  an  officer  of  the  court  under  an  attachment  on 
mesne  process  levied  more  thau  four  months  prior  to  the 
filing  of  the  debtor's  petition,  the  court  should  retain  pos- 
session, enter  a  judgment  for  the  sale  of  the  property,  and  its 
officer  should  execute  such  judgment.96  When,  however, 
a  state  court  has  not  the  possession  of  the  estate  of  the  bank- 
rupt, but  such  estate  is  subject  to  a  valid  judgment  or  exe- 
cution lien,  a  more  difficult  question  arises.  In  such  a  case 
it  is  claimed,  with  a  great  deal  of  force,  that  the  property, 
by  vesting  in  the  assignee,  becomes  in  custodia  legist;  and, 
therefore,  upon  well-settled  principles,  can  not  be  sub- 
jected to  any  interference  not  sanctioned  by  the  court  of 
bankruptcy.97  Where  the  property  subject  to  the  lien  is  ex- 
empt from  the  operation  of  the  Bankrupt  Act,98  or  has  been 
sold  by  the  debtor  before  filing  the  petition,99  or,  from  any 
other  cause,  does  not  vest  in  the  assignee,  the  claim  that  it 

93  Davis  v.  R.  R.  Co.,  13  B.  K.  258;  1  Woods,  GG1 ;  Myer  v.  C.  L.  &  P. 
W.,  14  B.  R.  9;  Sedgwick  v.  Menck,  1  B.  R.  675;  G  Blatchf.  15G;  Apple- 
ton  v.  Bowles,  9  B.  R.  354;  2  X.  Y.  Supr.  Ct.  56S;  6  Ch.  L.  N.  192; 
In  re  Clark  &  Binninger,  3  B.  R.  491 ;  4  Ben.  SS.  Contra,  In  re  Whipple, 
6Biss.  516;  13  B.  R.  373. 

9*Townsend  v.  Leonard,  3  Dill.  370;  Bradley  v.  Frost,  3  Dill.  457; 
Marshall  v.  Knox,  8  B.  R.  97;  16  Wall.  551;  In  re  Smith  &  Smith,  I  B. 
R.  599;  Wilson  v.  Childs,  G  Ch.  L.  X".  27;  In  re  W.  H.  Shuey,  6  Ch.  L. 
N.  248;  In  re  Wearner,  8  B.  R.  527;  Allen  v.  Montgomery,  48  Miss.  101; 
Thompson  v.  Moses,  43  Ga.  383;  O'Brien  v.  Weld,  2  Otto,  SI. 

95  Sharman  v.  Howell,  40  Ga.  257 ;  2  Am.  Rep.  576  ;  Parks  v.  Sheldon, 
36  Conn.  466;  4  Am.  Rep.  95,  and  the  authorities  in  the  last  citation. 

9|;  See  citation  No.  33. 

97Marshon  v.  Haney,  12  B.  R.  484;  4  B.  R.  510;  1  Dill.  497;  Davis  v. 
Anderson,  6  B.  R.  145;  Turner  v.  The  Skylark,  6  Ch.  L.  N.  239. 

98Cummings  v.  Clegg,  14  B.  R.  49;  Robinson  v.  Wilson,  15  Kas.  595; 
Bush  v.  Lester,  15  B.  R.  36. 

99  Jones  v.  Lellyett,  39  Ga.  64;  Winship  v.  Phillips,  52  Ga.  593. 


ENFORCEMENT    OF   JUDGMENTS   AGAINST    BANKRUPTS.      29 

becomes^  custodia  legishy  virtue  of  the  proceedings  in 
bankruptcy  is  certainly  unfounded.  It  may,  therefore.  In- 
sold  under  process  issued  out  of  a  State  court.  So,  after 
the  proceedings  in  bankruptcy  have  terminated,  either  by 
the  discharge100  of  the  bankrupt,  or  by  the  refusal  of  such 
discharge,101  we  do  not  doubt  that  the  creditor  ma}'  enforce 
his  lien  in  the  state  court  ;  for  in  either  of  these  cases  ii  is 
certain  that  the  property,  if  ever  in  custodia  legis,  has 
ceased  to  be  so.  Except  in  the  state  of  Louisiana,  levies 
are  made  upon  real  estate  without  disturbing  the  possession 
of  the  defendant.102  In  fact,  no  authority  for  such  disturb- 
ance exists  until  after  the  sale  is  made,  and,  in  most  ca->  s, 
not  until  the  purchaser's  title  has  become  absolute  by  rea- 
son of  the  expiration  of  the  statutory  period  allowed  for 
redemption.  The  levy  upon  lands  does  not  create  any 
special  property  in  the  levying  officer,  as  is  the  case  when 
personalty  is  seized  under  execution.  And  we  do  not  un- 
derstand that  a  levy  upon  real  estate  places  it  in  the  custody 
of  the  law  in  any  of  those  states  whose  statutes  give  no 
authority  for  wresting  it  from  the  custody  of  the  defendant. 
But  we  think  it  must  be  conceded  that  the  levy  of  an  exe- 
cution  upon  real  estate  confers  authority  upon  the  officer  to 
proceed,  notwithstanding  the  subsequent  bankruptcy  of  the 
defendant,  to  make  the  levy  productive  by  a  sale  of  the 
property.103  Where,  however,  no  levy  has  been  made 
prior  to  the  filing  of  the  petition,  quite  a  number  of  au- 
thorities may  be  produced  to  support  the  proposition  that  a 
subsequent  sale  is  void,  though  supported  by  a  valid  execu- 
tion   or  judgment    lien.104     Some   of    these    authorities  are 

wo  Cole  v.  Duncan,  58  111.  176;  Reed  v.  Bullington,  49  Miss.  223 ;  n  B. 

R.  408;  Trnitt  v.Truitt.  38  fad.  L6;  Pierce  v.  Wilcox,  40  fad.  70;  Second 

N.  B.v.N.S.B.of  Newark,  7Ch.  L.N.  70;11  B.R.  19;  L4A.L.  Beg.  (N. 

S.)  281;  Payne  v.  Able,  I  P..  R.  220;7  Bush,  344;  Wicks  v.  Perkins,  13B. 

R. 280.  Contra,  Johnson v.Poag, 39 Tex. 92;  Stemmonsv. Burford,  /  .352. 

WttDingee  s.  Becker,  0  B.  R.  508:  :!1  !.<•-.  Int.  ir.c. 

lOSFxeeman  OB  Executions,  sec  280. 

108 Goddard v. Weaver,  6  B.R.440;  Thompson  v.Moses,43  Ga.  ::-:'>: 
Maris  v.  Duron.  1  Brews.  428;   Norton  v.  Boyd,  '.'<  Bow.  I'.  S.  426. 

i'»  Davis  v.  Anderson,  6  B.  R.  145;  Turner  v.  The  Skylark,  6  <  !h.  I..  X. 


30      ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

founded  upon  the  theory  that  the  state  courts  have  no  power 
whatever  to  enforce  a  lien  against  the  estate  of  a  bankrupt ; 
and  some  upon  the  theory  that,  by  virtue  of  the  bankruptcy 
and  the  assignment  in  pursuance  thereof,  the  property  is  in 
custody  of  the  law.     The  iirst  theory  can  not  be  sustained. 
Let  us,  therefore,  proceed  to  examine  the  second.    The  title 
of  the  bankrupt  is  not  divested  by  the  filing  of  the  petition, 
nor   by.  the  adjudication  of  bankruptcy.105     The  judge  or 
register  must  make  a  written  transfer  to  the  assignee.     The 
assignee  acquires  no  title  to,  nor  authority  over,  any  prop- 
erty not  embraced  in  the  transfer.   '  "  The  assignment  is  not 
a   precept  issued  by  the  court,  but   a   conveyance  of  the 
bankrupt's  property,  giving  the  assignee  the  mere  rights  of 
ownership,  but  no  authority  or  color  of  authority  to  take  the 
property  of  strangers.106   Hence,  if  he  takes  property  which 
did  not  belong  to  the  bankrupt,  his  acts  are  not  those  of 
an  assignee,  but  those  of  a  trespasser.107     We  shall  show 
that  the  court  of  last  resort,  so  far  as  it  has  expressed  any 
opinion  on  the  subject,  considers  the  title  of  the  assignee  to 
be  very  similar  to  that  of  a  grantee  under  a  voluntary  con- 
veyance.    Thus,  Mr.  Justice  Hunt,  in  delivering  the  opin- 
ion of  the  Supreme  Court  of  the  United  States,  in  the  case 
of  Valliant  v.  Childress,108  said:  "The  conveyance  of  the 
register  operates  as  would,  under  ordinary  circumstances, 
the  deed  of  a  person  having  the  title,  with  two  differences  : 
first,  it  relates  back  to  the  commencement  of  the  bankruptcy 
proceeding ;  secondly,  the  register's    conveyance  dissolves 
any  attachment  that  has  been  made  within  four  months  pre- 
vious to  the  bankruptcy  proceedings."  These  views  are  sub- 

239;  Blum  v.  Ellis,  13  B.  R.  345;  8  Ch.  L.  N.  162;  Phelps  v.  Sellick,  8 
B.  R.  390;  Stemmohs  v.  Burford,  39  Tex.  352. 

105 Rev.  Stats.,  sec.  5044. 

we  Leighton  v.  Harwood.  Ill  Mass.  67;  15  Am.  Rep.  4. 

i07Leighton  v.  Harwood,  111  Mass.  67;  15  Am.  Rep.  4;  Edge  v.  Par- 
ker, 8  B.  &  C.  697.  As  to  remedy  against  U.  S.  Marshals  in  like  cases, 
see  Marsh  v.  Armstrong,  20  Minn.  81;  Mollison  v.  Eaton,  16  Minn.  426; 
10  Am.  Rep.  150;  Hill  v.  Fleming,  39  Ga.  662. 

10811  B.  R.  319. 


ENFORCEMENT    OF    Jl'DG.M  KXTS     VCAINST    BANKRUPTS.      31 

stantially  identical  with  those  subsequently  expressed  in  the 
same  court  by  Mr.  Justice  Miller,  in  the  case  of  Eyster  v. 
Gaff.108  If  the  differences  here  suggested  between  a  register's 
conveyance  and  that  of*  an  ordinary  conveyance  by  a  person 
having  the  title  arc  the  only  differences  that  really  exist, 
then  it  follows  that  the  grantee  takes  title  subject  to  its  being 
divested  by  a  sale  under  a  pre-existing  judgment  or  execu- 
tion lien  against  his  predecessor  in  interest.  If  the  lien  be 
based  on  an  attachment  levied  upon  real  estate  over  four 
months  prior  to  the  filing  of  the  petition  in  bankruptcy,  no 
doubt  such  real  estate  may  be  sold  under  a  writ  subsequently 
issued  out  of  the  state  court.110  We  see  no  reason  supporting 
such  a  sale,  which  does  not  apply  with  equal  force  to  a  sale 
under  a  judgment  lien.  In  neither  case  is  the  property  in  the 
possession  of  the  state  court.  In  both  cases  the  property  is 
subject  to  a  lien  which  is  not  extinguished  by  the  bankruptcy 
of  the  defendant,  and  which  needs  no  further  levy  to  make 
it  perfect.  The  Supreme  Court  of  Pennsylvania  has  affirmed 
the  right  of  the  holder  of  a  judgment  lien  to  sell  real  estate 
pending  proceedings  in  bankruptcy,  although  no  levy  had 
been  made  prior  to  the  commencement  of  such  proceedings.111 
This  position  is  well  fortified  by  the  decisions  made  under 
the  Bankrupt  Act  of  1841  ;112  and  we  judge  that  it  will  in 
due  time  be  equally  well  sustained  by  the  judgment  of  the 
court  of  last  resort  declaring  the  true  meaning  of  the  pres- 
ent statutes  of  the  United  States. 

Sec.  12.  Enjoining  Proceedings  in  State  Courts. — In 
what  has  been  said  in  the  preceding  section  about  the  right  of 
judgment  creditors  to  proceed  in  state  courts,  we  have  as- 

109  8  Ch.  L.  X.  177;  13  B.  R.  540;  1  Otto.  521 ;  3  Cent.  L.  J.  250. 

uoDoev.  Childress,  7  Ch.  L.  N".  201;  21  Wall.  643 :  Daggett  v.  Cook, 
37  Conn.  341;  Bates  v.  Tappan,  99  Mass.  376;  3  B.  R.  647;  Valliant  v. 
Childress,  11  B.  R.  319;  Peck  v.  Jenneas,  7  Bow.  U.  S.  612. 

uiFehleyv.  Ban-,  66  Penn.  St.  196;  Reeaer  v.  Johnson,  76  Penn.  St. 
313;  10  B.  R.  467;  see  also  Reed  v.  Bullington,  11  B.  R.  40S;  I'.i  MNs. 
223. 

"2 Savage  v.  Best,  3  How.  U.  S.  Ill;  McCance  v.  Taylor.  10  Gratt. 
580;  Russell  v.  Cheatham,  8  S.  &  M.  703;  Talhert  v.  Melton.  9  S.  &  M.  27. 


32     ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

sumed  that  such  right  was  not  exercised  in  defiance  of  any 
direct  prohibition  from  the  courts  of  bankruptcy.  We  shall 
now  consider  the  power  and  propriety  of  the  last-named 
courts  enjoining  proceedings  in  the  first-named.  The  express 
authority  granted  by  the  Bankrupt  Act  to  issue  injunctions 
is  that  conferred  by  section  5024  of  the  present  Revised 
Statutes.  That  section  refers  to  involuntary  or  compulsory 
proceedings,  and  provides  that  "the  court  may,  by  injunc- 
tion, restrain  the  debtor,  or  any  other  person,"  from  making 
any  transfer  or  disposition  of  any  part  of  the  debtor's  prop- 
erty. But  this  injunction  is  only  to  be  operative  from  the 
filing  of  the  petition  until  the  adjudication  of  bankruptcy 
can  be  had.113  At  the  time  the  Bankrupt  Act  was  passed,  a 
statute  had  long  been  in  force  expressly  forbidding  the 
national  courts  from  restraining  proceedings  in  the  state 
courts.114  This  pre-existing  statute,  taken  in  connection 
with  the  significant  circumstance  that  the  Bankrupt  Act, 
where  it  did  mention  injunctions,  provided  for  their  issuing 
in  a  specified  case  and  then  to  remain  in  force  but  a  limited 
time,  fully  justified,  as  we  think,  those  decisions  which  de- 
nied the  right  of  the  courts  of  bankruptcy  to  enjoin  pro- 
ceedings in  the  state  courts.115  Section  4972,  among  other 
things,  confers  jurisdiction  upon  the  district  courts  as  courts 
of  bankruptcy,  to  collect  all  assets  of  the  bankrupt ;  to 
ascertain    and    liquidate    all   liens    and  claims  thereon ;  to 

us  Creditors  v.  Cozzens,  3  B.  K.  281 ;  2  W.  Jur.  349;  17  Pitts.  L.  J.  236; 
Irving  v.  Hughes,  2  B.  K.  62;  7  A.  L.  Reg.  (N.  S.)  209;  In  re  Kintzing, 
3  B.  R.  217;  In  re  Metzler,  1  B.  R.  38;  1  Ben.  356;  Iu  re  Moses,  6  B.  R. 
181 ;  In  re  Irving,  14  B.  R.  289. 

114  Sec.  5  of  Act  of  Congress  of  March  2, 1793,  among  other  provisions, 
contained  the  following :  "Nor  shall  a  writ  of  injunction  be  granted  to  stay 
proceedings  in  any  court  of  a  state."  The  corresponding  section  in  the 
present  Revised  Statutes  is  as  follows :  "The  writ  of  injunction  shall  not  be 
granted  by  any  court  of  the  United  States  to  stay  proceedings  in  any  court 
of  a  state,  except  in  cases  where  such  injunction  may  be  authorized  by 
the  law  relating  to  proceedings  in  bankruptcy."    R.  S.  of  U.  S.,  sec.  720. 

us Inre  Hugh  Campbell,  1  B.  R.  165;  1  Abb.  C.  C.  185;  1  L.  T.  B.  30; 
3  Pitts.  L.  J.  96;  In  re  S.  M.  Burns,  1  B.  R.  174;  7  A.  L.  Reg.  (N.  S.) 
105;  24  Leg.  Int.  357;  3  Pitts.  L.  J.  107;  Tenth  N.  B.  v.  Sanger,  42  How. 
P.  179. 


ENFORCEMENT    OF   JUDGMENTS    AGAINST    BANKRUPTS.       33 

adjust  the  various  priorities  and  conflicting  interests  of  all 

parties;  and  to  marshal  and  dispose  of  the  different  funds 
and  assets  so  as  to  scenic  the  rights  of  all  parties  and  a  due 
distribution  of  the  assets.  These  powers  are  very  extensive, 
and  must,  in  many  instances,  be  invoked  when  greal  prompt- 
itude of  action  is  required.  Proceedings  in  the  state 
courts,  if  permitted  to  continue,  would  frequently  so  dis- 
pose of  the  bankrupt's  assets  that  the  courts  of  bankruptcy 
could  not  adequately  assert  the  jurisdiction  conferred  by  this 
section.  Hence,  the  last-named  courts  have  so  frequently 
asserted  their  authority  to  suspend  proceedings  in  the  state 
courts  when  such  suspension  appeared  necessary  to  accom- 
plish the  objects  sanctioned  by  section  4972,  that  probably 
Mr.  High  is  fully  justified  in  his  assertion  that  "the  jurisdic- 
tion of  the  United  States  courts,  sitting  in  bankruptcy,  to 
restrain  proceedings  in  the  state  courts  against  the  estate  of 
a  bankrupt,  though  sometimes  questioned,  may  be  regarded 
as  too  clearly  settled  to  admit  of  doubt. 11,;  While  conceding 
the  decisive  preponderance  of  the  authorities,  we  are  by  no 
means  convinced  of  their  soundness,  and,  whether  sound  or 
not,  we  feel  assured  that  the  power  which  they  affirm  ought 
to  be  sparingly  exercised.117  In  the  first  place,  we  question 
the  existence  of  that  imperative  necessity  upon  which  the 

"fiHigh  on  Injunctions,  §  208;  In  re  Mallory,  6  B.  R.  22;  1  Saw.  SS; 
Jones  v.  Leach,  1  B.  R.  595;  In  re  Barrow,  1  B.  R.  4S1 ;  Lady  Bryan  M. 
Co.,  6  B.  R.  252;  Kerosene  Oil  Co.,  3  B.  R. 125;  3  Ben.  35;  6  Blatch. 
521;  In  re  Snedaker,  3  B.  R.  629;  Markson  v.  Beaney,  4B.  B.  510;  1 
Dill.  497;  Whitman  v.  Butler,  S  B.  R.  487;  Pennington  v.  Sale.  1  B.  R. 
572:  Hyde  v.  Bancroft,  8  B.  R.  24;  G  Ben.  392;  Irving  v.  Hughes,  2  B.  R. 
62;  7  A.  L.  Keg.  (X.  S. )  209;  In  re  Wallace, Deady,  433;  2  B.  R.  52;  Iron 
M.  Co.,  9  Blatch.  :?20;  In  re  Atkinson,  7  B.  R.  143;  6  Am.  L.  T.  320;  3 
Pitts.  L.J.  423;  In  re  Shuey,  6  Ch.  L.  X.  248. 

u" Our  opinion  thai  injunctions  t<>  restrain  proceedings  in  state  courts 
ought  not  to  be  needlessly  granted,  and,  When  granted,  oughl  HOI  to  ex- 
tend any  farther  than  is  essentia]  to  the  protection  of  the  interests  oi  the 
general  creditors,  is  sustained  by  the  authorities.  In  re  Davis,  8B.  B. 
167;  1  Saw.  C.  C.  260:  Goddard  v.  Weaver,  6  B.  B.  140;  Eastburnv. 
Yardly.  8  Pac.  L.  B.  127;  30  Leg.  Int.  404;  Iron  M.  Co.,  9  Blatch.  320; 
In  re  Wilbur,  3  B.  R.  71;  High  on  Injunctions  §214;  In  r<  Banna,  I  B. 
R.  411;  In  re  Brinkman,  6B.  B.  541. 
3 


34     ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

issuing  of  injunctions  to  restrain  proceedings  in  the  state 
courts  has  been  maintained.  It  by  no  means  follows,  be- 
cause very  extensive  powers  are  granted  to  the  bankruptcy 
courts  in  regard  to  marshalling  assets,  adjusting  priorities, 
and  liquidating  liens  and  claims,  that  those  powers  must  be 
supported  by  the  further  power  to  issue  injunctions.  On  the 
contrary,  it  ought  to  be  assumed  that  the  state  courts  would 
act  in  full  accord  with  the  national  courts,  and  would  yield 
a  voluntary  submission  to  the  authority  of  the  latter.  The 
statutes  of  the  United  States  in  regard  to  bankruptcy  are 
addressed  to  the  state,  as  well  as  to  the  national  courts,  and 
must,  of  necessity,  be  invoked,  interpreted,  and  enforced  in 
the  former  as  well  as  in  the  latter ;  the  decision  of  the  state 
courts  being,  however,  subject  to  review  in  certain  cases  by 
the  Supreme  Court  of  the  nation.  The  court  from  which 
process  to  enforce  a  judgment  is  issued  has  such  perfect  con- 
trol thereof  that  it  may,  for  any  proper  cause,  set  it  aside, 
or  may  stay  it  either  temporarily  or  permanently,  as  may  be 
requisite  to  prevent  any  abuse  thereof. 11S  If  this  be  true,  why 
resort  to  the  extraordinary  and  somewhat  offensive  remedy 
by  injunction.  If  proceedings  have  been  instituted,  or  are 
about  to  be  instituted,  to  test  the  validity  of  the  judgment ; 
or  if  the  judgment,  though  valid,  can  not  be  enforced  in  the 
state  court  without  undue  sacrifice  of  the  bankrupt's  assets  ; 
or  if,  from  any  cause  whatever,  an  emergency  arises  in 
which,  in  aid  of  the  proceedings  in  bankruptcy,  it  is  proper 
that  execution  should  be  stayed,  either  temporarily  or  per- 
manently,— why  not  disclose  the  fact  to  the  state  court,  and 
in  it  procure  the  requisite  relief?  In  defense  of  injunctions 
against  litigants  in  state  courts,  it  was  claimed  that,  because 
these  injunctions  did  not  assume  in  direct  terms  to  restrain 
the  courts,  they  were  not  forbidden  by  the  Act  of  1793,  be- 
fore referred  to.  But  surely  statutes  are  not  enacted  with 
the  view  of  preserving  matters  of  form,  and  permitting  the 
sacrifice  of  matters  of  substance.  Every  act  ought  to  be 
characterized  by  the  result  which  it  accomplishes,  and  which 
us  Freeman  on  Executions,  Sec.  32. 


ENFORCEMENT   OF   JUDGMENTS    AGAINST    BANKRUPTS.      35 

it  was  designed  to  accomplish,  rather  than  by  the  deceptive 
guise  in  which  it  is  sought  to  be  perpetrated.  The  different 
between  destroying  a  court  and  prohibiting  all  litigants  from 
resorting  to  it  for  redress  is,  in  the  eyes  of  justice,  an  im- 
material difference.  By  conceding  the  right  to  enjoin  the 
litigants  from  proceeding  in  a  particular  action, we,  in  effi 
concede  the  right  to  enjoin  the  court   from  so  proceeding. 

Sec.  13.  The  Effect  of  a  Discharge  in  Bankruptcy  is,  by 
the  statute,  declared  to  be  the  release  of  the  bankrupt  from 
the  liabilities  which  were  or  might  have  been  proved  against 
his  estate. m  The  debts  of  the  bankrupt  are  not,  however, 
in  fact  paid  ;  nor  are  they  so  extinguished  in  conscience, 
that  thev  can  not  be  a  sufficient  consideration  for  a  new 
promise.120  In  the  case  of  a  judgment,  within  the  operation 
of  a  discharge  in  bankruptcy,  it  is  evident  that  no  proceed- 
ings can  properly  be  taken  to  enforce  any  personal  liability 
against  the  bankrupt;  but  the  lien  of  the  judgment,  if  the 
plaintiff  has  done  nothing  to  waive  it,  still  exists  and  may 
be  enforced.  A  discharge  in  bankruptcy  does  not  release 
liens  which  were  valid  at  the  inception  of  the  proceedings.1-'1 
Hence,  a  judgment  creditor  may  redeem  real  estate,  by  vir- 
tue of  his  judgment  lien,  after  the  defendant  has  been  ad- 
judged a  bankrupt.122 

Sec.  14.  The  Method  of  Making  a  Discharge  Available, 
when  a  bankrupt  is  pursued  by  an  action,  is  by  pleading 
it  in  bar.     "  It  may  be  pleaded  by  a  simple  averment  that, 

iw  A  discharge  takes  effect  as  of  the  date  of  the  filing  of  the  bank- 
rupt's petition.  Turner  v.  Gatewood,  S  B.  Mon.  613;  Blosby  v.  Steele, 
7  Ala.  299.  It  does  not.  therefore,  protect  him  from  liabilities  incurred 
pending  the  proceedings  in  bankruptcy.  Robinson  v.  Pesant,  53  N.  Y. 
419;  SB.  R.  426;  Sparhawk  v.  Broome,  6  Binn.  256;  Savory  v.  St. irking, 
4  Cush.  607;  Stinemets  v.  Ainslie,  I  Den.  ~u3. 

lMDusenbury  v.  Hoyt,  10  B.  R.  313;  53  CT.Y.  521;  14  Abb.  Pr.  (N. 
S.)  132;  Barron  v.  Benedict,  ll  Vt.  518;  Apperson  v.  Stewart,  27  Ark. 
G19. 

121  Elliott  v.  Booth.  44  Tex.  1*0:   Bush  v.  Lester.  .V>  Ga.  .~>79;   L5   B.  K. 
36;  Robinson  v.  Wilson,  15  Has.  595;  Truitt  v.  Truitt,  38  End.  16; 
her  v.  Terrell.  54  <;a.  146;  Boone  v.  Revis.  44  Tex.  384. 

132 Trimble  v.  Williamson.  14  B.  R.  5;$;  49  Ala.  525. 


36      ENFORCEMENT    OF    JUDGMENTS    AGAINST    BANKRUPTS. 

on  the  day  of  its  date,  such  discharge  was  granted  to  the 
bankrupt,  setting  a  full  copy  of  the  same  forth  in  its 
terms."123  If  a  judgment  has  been  entered  against  a  bank- 
rupt, by  default,  after  his  discharge,  it  may,  on  seasonable 
application,  be  vacated  on  such  terms  as  may  be  just,  for 
the  purpose  of  permitting  him  to  interpose  the  discharge 
as  a  defense.124  The  true  rule  seems  to  be  that  this  defense 
will  be  treated  like  any  other  meritorious  defense.  Courts 
Mill  set  aside  defaults,  or  judgments  by  default,  in  order  to 
let  it  be  pleaded,  provided  the  application  is  not  too  tardily 
made  and  the  applicant  has  not  been  guilty  of  gross  laches. 
If  the  failure  to  interpose  the  plea  in  due  time  was  the  re- 
sult of  some  fraud  or  trick  on  the  part  of  the  plaintiff, 
certainly  the  defendant  would  be  relieved  from  the  uncon- 
scionable acts  of  his  adversary.125  If,  on  the  other  hand, 
the  defendant  has  no  excuse  sufficient  to  account  for  his 
disregarding  the  process  of  the  court,  and  failing  to  make 
his  proper  defense,  then  he  will  not  be  treated  with  any 
special  leniency  on  account  of  his  defense  being  founded 
on  his  discharge  in  bankruptcy.126  In  some  cases  it  is  said 
that,  where  a  discharge  has  been  granted,  a  plaintiff  claim- 
ing that  his  judgment  is  not  within  the  operation  of  the  dis- 
charge must  not  issue  an  execution  without  first  making  an 
application  to  the  court  and  obtaining  leave  so  to  do.127 
But,  in  many  cases,  the  plaintiff  is  ignorant  of  the  exist- 
ence of  the  discharge,  and  from  this,  and  other  causes,  it 
must  frequently  happen  that  executions  will  issue  on  judg- 
ments which  are  unquestionably  discharged.  Some  author- 
ities evidently  incline  to  the  view  that  a  writ  so  issued  is 
voidable  and  not  void ;  and  that  the  defendant,  to  escape 
its  effect,  must  take  some  affirmative  measures  to  procure 

123  Sec.  5119,  Rev.  St.  of  U.  S. ;  Sec.  34  of  Act  of  1S67;  StoU  v.  Wilson, 
14  B.  R.  571. 

124  Savings  Bank  v.  Webster,  48  jST.  H.  21 ;  Lee  v.  Phillips,  6  Hill,  246. 
i25  Park  v.  Casey,  35  Tex.  536 ;  Manwarring  v.  Kouns,  35  Tex.  171. 

126  Eudge  v.  Eundle,  1  N.  Y.  Supr.  Ct.  649 ;  Manwarring  v.  Kouns,  35 
Tex.  171. 

127  Alcott  v.  Avery,  1  Barb.  Ch.  347;  Francis  v.  Ogden,  22  N.  J.  L.  210. 


ENFORCEMENT   OF   JUDGMENTS    AGAINST    BANKRUPTS.      37 

its  vacation  or  to  prevent  its  execution.128  On  the  other 
hand,  it  has  been  determined  by  the  Court  of  Appeals  in 
New  York  that  a  judgment  which  has  been  released  by 
operation  of  a  discharge  in  bankruptcy  is,  in  legal  effect, 
satisfied  ;  and  that  the  plaintiff  can  not  justify  the  issuing 
and  levy  of  a  writ  thereunder,  although  he  acted  in  igno- 
rance of  the  existence  of  the  discharge.129  Such  a  writ  be- 
ing regular  on  its  face  would,  however,  justify  an  officer 
who  innocently  undertook  to  execute  it.  Unquestionably 
the  safest  course  for  a  discharged  bankrupt,  having  judg- 
ments ostensibly  in  force  against  him,  is  to  take  some 
affirmative  action  for  the  purpose  of  securing  the  benefit  of 
his  discharge.  Formerly  matters  of  discharge,  occurring 
subsequent  to  the  rendition  of  a  judgment,  were  brought  to 
the  attention  of  the  court  by  proceeding  by  writ  of  audita 
querela. m  In  the  United  States  this  remedy  has  fallen  into 
desuetude.  The  usual  method  of  securing  the  benefit  of  a 
discharge  in  bankruptcy  is  by  motion  to  the  court  wherein 
the  judgment  is.  This  court  will,  in  a  proper  case,  set 
aside  any  writ  which  has  been  issued,  and  will  grant  a  per- 
petual stay  of  proceedings.131  In  some  instances  relief  has 
been  obtained  by  injunction.132  This  character  of  relief 
ought  usually  to  be  denied  ;  for,  unless  in  very  exceptional 
cases,  the  remedy  at  law  is  both  speedy  and  adequate. 

i28Cogburn  v.  Spence,  15  Ala.  549;  Roden  v.  Jaco,  17  Ala.  344;  "Wes- 
tenberger  v.  Wheaton,  8  Kas.  169.  In  the  last-named  case  it  is  held 
that  a  discharged  bankrupt  can  not  maintain  an  action  of  replevin  for 
goods  levied  upon  by  a  sheriff  under  a  discharged  judgment. 

i29Ruckman  v.  Cowell,  1  X.  Y.  505. 

130 Freeman  on  Judgments,  Sec.  95. 

131  Linn  v.  Hamilton,  34  NT.  J.  L.  305;  Chambers  v.  Xeal.  13  B.  Mon. 
256;  Monroe  v.  Upton,  50  X.  Y.  .">!>:!:  V,  Lans.  255;  Cornell  v.  Dakin.  38 
X.  Y.  253;  Thomas  v.  Shaw,  2  Chin.  97. 

132 Murphy  v.  Smith,  22  La.  An.  441. 


INDEX. 


The  figures  have  reference  to  the  sections. 


ACTIONS  PENDING  PRIOR  TO  BANKRUPTCY. 

may  proceed  to  judgment.  4.  11. 
APPEAL. 

effect  of.  on  judgments  as  provable  debts,  2. 
ARREST  UNDER  EXECUTION, 

no  relief  from,  before  discharge.  6. 

when  allowed  pending  bankruptcy.  5. 
ASSIGNEE, 

may  prosecute  or  defend  suits  to  which  bankrupt  is  a  party.  4. 

the  nature  of  his  title,  8,  11. 

take.-  as  a  pendente  UU  purchaser,  11. 

may  obtain  a  stay  of  proceedings.  4. 
ATTACHMENT. 

how  release  from,  is  obtained.  4. 

when  not  released  by  bankruptcy.  I. 

sale  under.  4.  11. 

B. 

BANKRUPT, 

defined,  1 . 

La  BUbjecl  to  the  jurisdiction  of  all  the  courts.  1. 

how  to  obtain  relief  from  judgment.  .">. 

release  from  arrest  under  execution,  6. 

how  to  obtain  benefit  of  his  discharge,  14. 


CONFESSION, 

judgment  by,  3. 
COSTS  ON  JUDGMENTS, 

when  allowed  in  bankruptcy, 2,  •"). 


40  INDEX. 


D. 


DEFAULT.  JTDGMFXT  BY. 

when  valid  in  bankruptcy.  3. 

vacating.  14. 
DISCHARGE. 

what  judgments  not  affected  by.  7. 

the  effect  of.  13. 

how  made  available.  14. 


E. 


EXECUTION.-  AGAINST  BAXKBUPTS. 
proceedings  on.  pending  bankruptcy.  5.  6. 
arrest  of  bankrupt  under.  6. 
issued  after  discharge  granted.  14. 
perpetual  stay  of.  14. 


test:. 

judgment  for.  not  a  provable  debt.  2. 


ixjuxctiox. 

not  granted  where  bankrupt  fails  to  plead  his  discharge.  4. 
against  proceedings  in  state  courts.  12. 
IXTEXT  TO  PREFER. . 
from  what  inferred.  3. 

J. 

JUDGMEXTS  AGAINST  BAXKRUPTS. 
classified.  2. 

entered  four  months  prior  to  bankruptcy.  2. 
entered  four  months  prior  to  bankruptcy,  when  provable.  2. 
entered  within  four  months  prior  to  bankruptcy,  whenpreferei. 
entered  after  filing  petition  in  bankruptcy,  validity  of.  4. 
entered  after  filing  petition  in  bankruptcy,  how  enforced.  5. 
entered  after  filing  petition  in  bankruptcy,  whether  provaU 

ution  thereof  pending  proceedings  in  bankruptcy.  0. 
when  bankrupt  may  be  arrested  under.  6. 
are  conclusive  by  way  of  es:oj<pel.  6. 
what  not  released  by  discharge  of  bankrupt.  7. 
hens  of,  not  destroyed  by  bankruptcy.  8. 


INDEX  41 

JUDGMENTS  AGAINST  BANKRUPTS— Continued. 

enforcing  liens  of,  in  courts  of  bankruptcy,  9. 
enforcing  lien?  of,  where  debt  is  proved  as  unsecured.  10. 
enforcing  liens  of.  outside  of  bankruptcy  courts.  11. 
how  affected  by  bankrupt's  discharge,  13. 
vacating,  to  allow  discharge  to  be  pleaded,  14. 
perpetual  stay  of  execution  on.  14. 

L. 

LEVY  OF  EXECUTION, 

lien  of,  8. 

sale  under,  after  bankruptcy,  11. 
levy  after  bankruptcy,  11. 
LIENS. 

are  preserved  in  bankruptcy.  S. 

can  not  be  created  after  bankrupt 

how  enforced  in  courts  of  bankruptcy,  '.'. 

how  enforced  in  state  courts,  10.  11. 

how  affecte  d  by  proof  of  debt  as  unsecured.  10. 

how  affected  by  discharge.  13. 

P. 

PENALTIES, 

judgments  for.  are  provable  debt-.  2. 
POSSESSION   OF   COURTS. 

not  to  be  disturbed.  11. 
PREFERENCES. 

what  judgments  void  as.  3. 
PROVABLE   DEBT>. 

judgments  entered  before  bankruptcy.  2. 

judgments  entered  pending  bankruptcy.  5. 

R. 

RECEIVERS. 

-     n  of,  not'to  be  disturbed.  11. 
RELIEF. 

from  judgments  entered  after  filing  of  petition, 

how  procured  under  a  discharge,  14. 


SALES  UNDER4AYRITS  FROM  STATE  COURTS. 

when  valid.  11. 
SHERIFF-. 

when  may  retain  possession  and  sell  property,  11. 


42  INDEX. 

STATE   COURTS, 

proceedings  in,  to  enforce  liens,  10, 11. 

having  acquired  jurisdiction,  may  proceed,  11. 

enjoining  proceedings  in,  12. 
STAY  OF  PROCEEDINGS, 

when  and  for  whom  to  be  granted,  4. 

when  to  be  revoked,  4. 

perpetual  after  discharge,  14. 


TORT, 

judgment  for,  when  a  provable  claim,  2. 


W 


WAIVER  OF  LIEN, 

by  proving  claim  as  unsecured,  10. 
WARRANT  TO    CONFESS  JUDGMENT, 
judgment  under,  when  a  preference,  3. 


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